SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1995
Filed pursuant to the Public Utility Holding Company Act of 1935 by
Cinergy Corp.
139 East Fourth Street
Cincinnati, Ohio 45202
(Name and address of each registered holding company in the system)
<PAGE>
TABLE OF CONTENTS
Item
No.
1 SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995
2 ACQUISITIONS OR SALES OF UTILITY ASSETS
3 ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES
4 ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES
5 INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
6 OFFICERS AND DIRECTORS
Part I. Name, prinicpal business address, and positions held as
of
December 31, 1995
Part II. Financial connections as of December 31, 1995
Part III. Compensation and other related information
7 CONTRIBUTIONS AND PUBLIC RELATIONS
8 SERVICE, SALES, AND CONSTRUCTION CONTRACTS
Part I. Intercompany sales and service
Part II. Contracts to purchase services or goods between any
system company and any affiliate
Part III. Employment of any person by any system company for the
performance on a continuing basis of management
services
9 WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
10 FINANCIAL STATEMENTS AND EXHIBITS
Index to Financial Statements
Exhibits
SIGNATURE
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995
<TABLE>
<CAPTION>
Number
of
Common % of Issuer's Owner's
Shares Voting Book Book
Name of Company Owned Power Value Value
(Indentation indicates subsidiary relationship) (dollars in thousands)
<S> <C> <C> <C> <C>
Cinergy Corp. (Cinergy)
The Cincinnati Gas & Electric Company (CG&E) 89,663,086 100 $1,528,463 $1,528,463
The Union Light, Heat and Power Company (ULH&P) 585,333 100 110,482 110,482
Tri-State Improvement Company (Tri-State) 1,000 100 26,928 79
Lawrenceburg Gas Company (Lawrenceburg) 10,768 100 5,645 5,645
The West Harrison Gas and Electric Company
(West Harrison) 2,000 100 291 291
Miami Power Corporation (Miami) 1,000 100 16 16
KO Transmission Company* (KO Transmission) 10 100 - -
PSI Energy, Inc. (PSI)(1) 53,913,701 100 1,029,067 1,029,067
PSI Energy Argentina, Inc. (PSI Energy Argentina) 100 100 10,705 10,705
South Construction Company, Inc. (South Construction) 10 100 - -
Cinergy Investments, Inc. (Investments)(2)(3) 100 100 11,447 11,447
CGE ECK, Inc. (CGE ECK) 10 100 (475) (475)
Cinergy Resources, Inc. (Cinergy Resources)(4) 10 100 (687) (687)
Cinergy Technology, Inc. (Technology)(5) 100 100 - -
PSI Argentina, Inc. (Argentina)(6)(7) 100 100 16,810 16,810
Costanera Power Corp. (Costanera)(7) 100 100 - -
PSI International, Inc.* 100 100 - -
PSI Power Resource Development, Inc.* 100 100 - -
PSI Power Resource Operations, Inc.* 100 100 - -
PSI Recycling, Inc. (Recycling)(2) 100 100 1,870 1,870
PSI Sunnyside, Inc.* 100 100 - -
PSI T&D International, Inc.* 100 100 - -
PSI Yacyreta, Inc.* 100 100 - -
Power Equipment Supply Co. (PESCO)(8) 100 100 4,666 4,666
Power International, Inc. (Power International)(3) 100 100 (8,105) (8,105)
Beheer-En Belegginsmaatschappij Bruwabel B.V. (Bruwabel)(3) 321 100 (1,266) (1,266)
Power Development s.r.o.(3)(9) N/A 100 (353) (353)
Power International s.r.o.(3)(10) N/A 100 (948) (948)
Wholesale Power Services, Inc. (Wholesale Power)(11) 100 100 (485) (485)
Cinergy Services, Inc. (Services) 50 100 (213) (213)
<FN>
*Inactive at December 31, 1995.
- -Amounts are less than $1,000.
Notes are on the next page.
(1) PSI also has voting cumulative preferred stock outstanding at December 31, 1995, as follows:
Class Shares outstanding Vote per share
Par value $100 799,483 1 vote
Par value $25 4,317,925 1/4 vote
(2) Investments is actively pursuing the sale of Recycling.
(3) In 1994, Enertech Associates International, Inc. was renamed Power International. Power
International offers utility management consulting services to non-associates and pursues investment
opportunities in energy-related areas. The activities of Power International were reduced
in 1995, and Investments is exploring opportunities to sell Bruwabel (a Dutch corporation)
and its subsidiaries.
(4) In 1995, CG&E Resource Marketing, Inc. divested its one-third general partnership interest in U.S.
Energy Partners, a gas marketing partnership, and was renamed Cinergy Resources. Cinergy Resources
will continue in the business of natural gas brokering and marketing.
(5) In connection with the reduction in activities in 1995 of Power International (including the
potential sale of Bruwabel and its subsidiaries), PSI Environmental Corp. was renamed
Technology, with a view of offering utility management consulting services to non-associates
and pursuing investment opportunities in energy-related areas.
(6) In 1995, Argentina sold its interest in E P EDEGEL, Inc. In addition, as a result of Costanera
selling substantially all of its assets (see Note 7), Argentina, like Costanera, notified the
Federal Energy Regulatory Commission (FERC) in 1996 that it no longer seeks to maintain its
status as an exempt wholesale generator (EWG). (For additional information, see "Item 9. Wholesale
Generators and Foreign Utility Companies.")
(7) In 1995, Costanera, a wholly-owned subsidiary of Argentina, sold its equity interest in an
Argentine power plant, constituting substantially all of its assets. As a result, Costanera
notified the FERC in 1996 that it no longer seeks to maintain EWG status. (For additional
information, see "Item 9. Wholesale Generators and Foreign Utility Companies.")
(8) In late 1995, PESCO sold the assets of its North American Machinery Division to a non-
associate.
(9) Power Development s.r.o. is a Czech Republic limited liability corporation.
(10)Power International s.r.o. is a Czech Republic limited liability corporation.
(11)As part of its business, Wholesale Power markets and maintains the services of an "electronic
bulletin board" for power brokering and sales in the bulk power market. The use of the
electronic bulletin board was limited in 1995 and is being phased out in 1996. Additionally,
in 1995, Wholesale Power received authorization from the FERC to sell electricity to non-
associates at market-based rates.
</TABLE>
<PAGE>
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
None
<PAGE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES
<TABLE>
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing, Issued Guaranteed, Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
CG&E
Ohio Air Quality
Development Revenue
Refunding Bonds,
due September 1, 2030 CG&E $84,000 09/13/95 $83,470 Rule 52 (See certificate of
notification on Form U-6B-2
filed on Oct. 3, 1995.)
</TABLE>
<PAGE>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES
<TABLE>
<CAPTION>
Name of Company
Acquiring, Principal Extinguished (E) Commission
Redeeming, or Number of Amount or Held for Authorization
Name of Issuer Retiring Shares Retired Consideration Further or
and Title of Issue Securities Redeemed (thousands) (thousands) Disposition (D) Exemption
<S> <C> <C> <C> <C> <C> <C>
CG&E
First Mortgage Bonds
9.70% Series CG&E $59,000 $59,000 E Rule 42
10 1/8% Series CG&E 55,000 55,000 E Rule 42
9.70% Series CG&E 41,000 41,713 E Rule 42
10 1/8% Series CG&E 45,000 45,749 E Rule 42
10.20% Series CG&E 13,500 13,780 E Rule 42
10 1/8% Series
(Pollution Control) CG&E 84,000 86,100 E Rule 42
Cumulative Preferred Stock
Par value $100 per share
7.44% Series CG&E 400,000 40,000 40,400 E Rule 42
9.15% Series CG&E 500,000 50,000 53,050 E Rule 42
ULH&P
First Mortgage Bonds
10.25% Series ULH&P 15,000 15,734 E Rule 42
9.70% Series ULH&P 20,000 21,302 E Rule 42
PSI
First Mortgage Bonds
Series YY, 5.60% PSI 55 55 E Rule 42
Pollution Control Notes
5 3/4% Series PSI 400 400 E Rule 42
Medium-term Notes
Series B, 5.75% PSI 60,000 60,000 E Rule 42
Cumulative Preferred Stock
Par value $100 per share
3 1/2% Series PSI 329 32 15 E Rule 42
</TABLE>
<PAGE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
<TABLE>
<CAPTION>
Aggregate Amount of Investments Number of
1. Name of in Persons (Entities) Operating in Persons Description of
Company Retail Service Area of Owner (Entities) Persons (Entities)(1)
(in thousands)
<S> <C> <C> <C>
CG&E $ 84 3 Limited partnerships which own,
rehabilitate, and maintain apartment
buildings for low income housing
CG&E 1,030 2 Limited partnerships which invest
in small and minority- or female-owned
businesses
CG&E 15 1 Community improvement fund
ULH&P 1 2 Economic development corp.
PSI 3,850 3 Limited partnerships which make long-term
investments in Indiana and other midwestern
businesses
PSI 525 1 Limited partnership which invests in start-up
companies
PSI 4 1 Oil company
PSI 5 1 Economic development corp.
PSI 8 1 Retail department store
PSI 38 1 Retail department store
PSI 178 1 Manufacturer of construction materials
PSI 1 1 Economic development corp.
PSI 120 1 Manufacturer of construction materials
PSI 6 1 Drug store/pharmacy
PSI 4 1 Owns and operates hotels
PSI 3 1 Economic development corp.
PSI 1 1 Economic development corp.
PSI 1 6(2) Economic development corp., country clubs,
jeweler, barge company, and bus company.
<FN>
(1) All of PSI's investments in securities, except for its partnership interests, represent bankruptcy
distributions applicable to obligations of customers incurred in the ordinary course of business.
(2) Represents small ownership interests in six unrelated companies.
</TABLE>
<TABLE>
<CAPTION>
2. Securities not included in Item 5, No. 1:
% of Owner's
Name of Name of Description Number of Voting Nature of Book Value
Company Issuer of Security Shares Power Business (in thousands
<S> <C> <C> <C> <C> <C> <C>
CG&E Ohio Valley Common stock 9,000 9% Public utility $ 900
Electric Corp.
PSI Circle Limited
Center Mall partnership N/A 4.2% Shopping mall 3,015
PSI EMC Technologies, Refurbish and
Inc. Preferred stock 3,483 (2) manufacture large 4
electrical equipment
CGE ECK ECK s.r.o. Limited liability Czech Republic
corporation N/A 3% generating facility -(1)
<FN>
(1) This investment was written off in 1994. CGE ECK intends to dispose of this interest.
(2) Not available.
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
AS OF DECEMBER 31, 1995
Part I
<TABLE>
<CAPTION>
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED*
Cinergy Services CG&E ULH&P Tri-State Lawrenceburg
<S> <C> <C> <C> <C> <C> <C>
Neil A. Armstrong (a) D
James K. Baker (c) D
Michael G. Browning (d) D
Clement L. Buenger (e) D
Phillip R. Cox (f) D
Kenneth M. Duberstein (g) D
John A. Hillenbrand II (h) D
George C. Juilfs (i) D
Melvin Perelman, Ph.D. (j) D
Thomas E. Petry (k) D
Jackson H. Randolph (a) D,CM D,CM D,CM D,CM D,CM D,CM
James E. Rogers (a) D,VCM,P,CEO D,VCM,P,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO
John J. Schiff, Jr. (l) D
Philip R. Sharp, Ph.D. (m) D
Van P. Smith (n) D
Dudley S. Taft (o) D
Oliver W. Waddell (p) D
Terry E. Bruck (a) GVP D,GVP GVP D,GVP D
Cheryl M. Foley (a) VP,GC,S D,VP,GC,S VP,GC,S D,VP,GC,S VP,GC,S VP,GC,S
J. Wayne Leonard (a) GVP,CFO D,GVP,CFO GVP,CFO D,GVP,CFO D,GVP,CFO GVP,CFO
Stephen G. Salay (a) GVP D,GVP GVP D
Larry E. Thomas (a) GVP,CTO D,GVP,CTO GVP,CTO GVP,CTO GVP,CTO GVP,CTO
William J. Grealis (a) VP VP D,P D,P D,P P
John M. Mutz (b) VP VP
George H. Stinson (a) VP VP VP VP VP VP
William L. Sheafer (a) T T T T T T
Bernard F. Roberts (a) AT AT AT AT AT AT
Charles J. Winger (a) C C C C C C
John P. Steffen (a) AC AC AC AC AC AC
John E. Polley (b) AS AS AS AS AS AS
Jerome A. Vennemann (a) AS AS AS AS AS AS
Vincent E. Andres (a) D
John H. Hoffman (a) D
Ronald J. Brothers (b)
Barry E. Pulskamp (a)
John J. Roebel (a)
<FN>
*Address codes and position
descriptions are listed on
the following page.
</TABLE>
<TABLE>
<CAPTION>
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED*
West KO PSI Energy South
Harrison Miami Transmission PSI Argentina Construction
<S> <C> <C> <C> <C> <C> <C>
Neil A. Armstrong (a)
James K. Baker (c) D
Michael G. Browning (d) D
Clement L. Buenger (e)
Phillip R. Cox (f)
Kenneth M. Duberstein (g)
John A. Hillenbrand II (h) D
George C. Juilfs (i)
Melvin Perelman, Ph.D. (j)
Thomas E. Petry (k)
Jackson H. Randolph (a) D,CM D,CM D,CM D,CM D D
James E. Rogers (a) D,VCM,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO D D
John J. Schiff, Jr. (l)
Philip R. Sharp, Ph.D. (m)
Van P. Smith (n) D
Dudley S. Taft (o)
Oliver W. Waddell (p)
Terry E. Bruck (a) GVP GVP GVP
Cheryl M. Foley (a) VP,GC,S VP,GC,S D,VP,GC,S VP,GC,S D,S D,S
J. Wayne Leonard (a) GVP,CFO GVP,CFO GVP,CFO GVP,CFO VP VP
Stephen G. Salay (a) GVP
Larry E. Thomas (a) GVP,CTO GVP,CTO GVP,CTO GVP,CTO
William J. Grealis (a) P P D,P D,P
John M. Mutz (b) D,P D,P
George H. Stinson (a) VP VP VP VP
William L. Sheafer (a) T T T T T T
Bernard F. Roberts (a) AT AT AT AT
Charles J. Winger (a) C C C C C C
John P. Steffen (a) AC AC AC AC
John E. Polley (b) AS AS AS AS
Jerome A. Vennemann (a) AS AS AS AS
Vincent E. Andres (a) D D
John H. Hoffman (a) D D
Ronald J. Brothers (b) AS
Barry E. Pulskamp (a)
John J. Roebel (a)
<FN>
*Address codes and position
descriptions are listed on
the following page.
</TABLE>
<TABLE>
<CAPTION>
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED*
CGE Cinergy
Investments ECK Resources Argentina Costanera Technology
<S> <C> <C> <C> <C> <C> <C>
Neil A. Armstrong (a)
James K. Baker (c)
Michael G. Browning (d)
Clement L. Buenger (e)
Phillip R. Cox (f)
Kenneth M. Duberstein (g)
John A. Hillenbrand II (h)
George C. Juilfs (i)
Melvin Perelman, Ph.D. (j)
Thomas E. Petry (k)
Jackson H. Randolph (a) D,CM D D D D D
James E. Rogers (a) D,VCM,CEO D D D D D
John J. Schiff, Jr. (l)
Philip R. Sharp, Ph.D. (m)
Van P. Smith (n)
Dudley S. Taft (o)
Oliver W. Waddell (p)
Terry E. Bruck (a)
Cheryl M. Foley (a) D,VP,GC,S D,S D,S D,S D,S D,S
J. Wayne Leonard (a) D,VP,CFO VP VP VP VP VP
Stephen G. Salay (a) D
Larry E. Thomas (a)
William J. Grealis (a) D,P D,P D,P D,P D,P D,P
John M. Mutz (b) D
George H. Stinson (a)
William L. Sheafer (a) T T T T T T
Bernard F. Roberts (a)
Charles J. Winger (a) C C C C C C
John P. Steffen (a)
John E. Polley (b)
Jerome A. Vennemann (a)
Vincent E. Andres (a)
John H. Hoffman (a)
Ronald J. Brothers (b)
Barry E. Pulskamp (a)
John J. Roebel (a)
<FN>
*Address codes and position
descriptions are listed on
the following page.
</TABLE>
<TABLE>
<CAPTION>
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED*
PSI Power PSI Power
PSI Resource Resource PSI PSI T&D
International Development Operations Recycling Sunnyside International
<S> <C> <C> <C> <C> <C> <C>
Neil A. Armstrong (a)
James K. Baker (c)
Michael G. Browning (d)
Clement L. Buenger (e)
Phillip R. Cox (f)
Kenneth M. Duberstein (g)
John A. Hillenbrand II (h)
George C. Juilfs (i)
Melvin Perelman, Ph.D. (j)
Thomas E. Petry (k)
Jackson H. Randolph (a) D D D D D D
James E. Rogers (a) D D D D D D
John J. Schiff, Jr. (l)
Philip R. Sharp, Ph.D. (m)
Van P. Smith (n)
Dudley S. Taft (o)
Oliver W. Waddell (p)
Terry E. Bruck (a)
Cheryl M. Foley (a) D,S D,S D,S D,S D,S D,S
J. Wayne Leonard (a) VP VP VP VP VP VP
Stephen G. Salay (a)
Larry E. Thomas (a)
William J. Grealis (a) D,P D,P D,P D,P D,P D,P
John M. Mutz (b)
George H. Stinson (a)
William L. Sheafer (a) T T T T T T
Bernard F. Roberts (a)
Charles J. Winger (a) C C C C C C
John P. Steffen (a)
John E. Polley (b)
Jerome A. Vennemann (a)
Vincent E. Andres (a)
John H. Hoffman (a)
Ronald J. Brothers (b)
Barry E. Pulskamp (a)
John J. Roebel (a)
<FN>
*Address codes and position
descriptions are listed on
the following page.
</TABLE>
<TABLE>
<CAPTION>
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED*
PSI Power(1) Wholesale
Yacyreta PESCO International Power
<S> <C> <C> <C> <C>
Neil A. Armstrong (a)
James K. Baker (c)
Michael G. Browning (d)
Clement L. Buenger (e)
Phillip R. Cox (f)
Kenneth M. Duberstein (g)
John A. Hillenbrand II (h)
George C. Juilfs (i)
Melvin Perelman, Ph.D. (j)
Thomas E. Petry (k)
Jackson H. Randolph (a) D D D D
James E. Rogers (a) D D D D
John J. Schiff, Jr. (l)
Philip R. Sharp, Ph.D. (m)
Van P. Smith (n)
Dudley S. Taft (o)
Oliver W. Waddell (p)
Terry E. Bruck (a)
Cheryl M. Foley (a) D,S D,S S D,VP,S
J. Wayne Leonard (a) VP VP VP D,P
Stephen G. Salay (a)
Larry E. Thomas (a)
William J. Grealis (a) D,P D,P P
John M. Mutz (b)
George H. Stinson (a) D
William L. Sheafer (a) T T T T
Bernard F. Roberts (a)
Charles J. Winger (a) C C C C
John P. Steffen (a)
John E. Polley (b)
Jerome A. Vennemann (a)
Vincent E. Andres (a)
John H. Hoffman (a)
Ronald J. Brothers (b)
Barry E. Pulskamp (a) D
John J. Roebel (a) D
<FN>
*Address codes and position
descriptions are listed on
the following page.
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued)
Part I
Address Codes:
(a) 139 East Fourth Street, Cincinnati, Ohio 45202
(b) 1000 East Main Street, Plainfield, Indiana 46168
(c) One Noblitt Plaza, Columbus, Indiana 47202
(d) 251 North Illinois, Suite 200, Indianapolis, Indiana 46204
(e) 38 Fountain Square Plaza, Cincinnati, Ohio 45263
(f) 105 East Fourth Street, Suite 600, Cincinnati, Ohio 45202
(g) 2100 Pennsylvania Avenue, N.W., Suite 350, Washington, D.C. 20037
(h) 324 Mitchell Avenue, Batesville, Indiana 47006
(i) One Riverfront Place, Newport, Kentucky 41071
(j) 8751 Jaffa Court, E. Drive, Apt. 16, Indianapolis, Indiana 46260
(k) 580 Walnut Street, P.O. Box 779, Cincinnati, Ohio 45201
(l) P.O. Box 145496, Cincinnati, Ohio 45250-5496
(m) 79 JFK Street, Cambridge, Massachussetts 02138
(n) 123 East Adams Street, Muncie, Indiana 47305
(o) 312 Walnut Street, Suite 3550, Cincinnati, Ohio 45202
(p) P.O. Box 1038, 425 Walnut Street, Cincinnati, Ohio 45201-1038
Positions are indicated by the following symbols:
AC Assistant Comptroller
AS Assistant Secretary
AT Assistant Treasurer
C Comptroller
CEO Chief Executive Officer
CFO Chief Financial Officer
CM Chairman of the Board
CTO Chief Transformation Officer
D Director
GC General Counsel
GVP Group Vice President
P President
S Secretary
T Treasurer
VCM Vice Chairman
VP Vice President
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued)
Part II
<TABLE>
<CAPTION>
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
<S> <C> <C> <C>
James K. Baker First Chicago NBD Corp. Director 70(b),(d)
Chicago, Illinois
Clement L. Buenger Fifth Third Bancorp Director 70(a)
Cincinnati, Ohio
The Fifth Third Bank Director 70(a)
Cincinnati, Ohio
Phillip R. Cox Cincinnati Office of the Director 70(b)
Federal Reserve Bank
of Cleveland
Cleveland, Ohio
PNC Bank, Ohio, N.A. Director 70(a)
Cincinnati, Ohio
John A. Hillenbrand II National City Bank Director 70(a)
Indianapolis, Indiana
John M. Mutz National City Bank Director 70(c),(f)
Indianapolis, Indiana
Thomas E. Petry Star Banc Corporation Director 70(a)
Cincinnati, Ohio
Star Bank, N.A. Director 70(a)
Cincinnati, Ohio
Jackson H. Randolph PNC Bank Corp. Director 70(b),(c),
Pittsburgh, Pennsylvania (d),(e)
PNC Bank, Ohio, N.A. Director 70(a),(e)
Cincinnati, Ohio
James E. Rogers Fifth Third Bancorp Director 70(a),(c),(e)
Cincinnati, Ohio
The Fifth Third Bank Director 70(a),(e)
Cincinnati, Ohio
John J. Schiff, Jr. Fifth Third Bancorp Director 70(a),(e)
Cincinnati, Ohio
The Fifth Third Bank Director 70(a),(e)
Cincinnati, Ohio
Dudley S. Taft Fifth Third Bancorp Director 70(a)
Cincinnati, Ohio
The Fifth Third Bank Director 70(a)
Cincinnati, Ohio
Oliver W. Waddell Star Banc Corporation Director 70(a)
Cincinnati, Ohio
Star Bank, N.A. Director 70(a)
Cincinnati, Ohio
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued)
Part III
(a) and (e) Directors' and Executive Officers' Compensation and
Participation in Bonus and Profit-Sharing Arrangements and Other
Benefits
For information concerning compensation of directors and executive
officers and their participation in bonus and profit-sharing and
other benefits, see the disclosures made in the:
1996 Cinergy Proxy Statement (Proxy Statement*), page 9 and
pages 12 through 23, for Cinergy and Investments and subsidiaries.
1995 Annual Report on Form 10-K (Form 10-K), pages 142 through 156,
for CG&E and subsidiaries.
1996 PSI Information Statement (Information Statement*), pages 6
through 17 (as supplemented in Exhibit F-9), for PSI and subsidiaries.
(b) Directors' and Executive Officers' Interests in Securities of System
Companies For information concerning interests in system companies, see
the disclosures (as supplemented in Exhibit F-9) made in the:
Proxy Statement, page 11, for Cinergy and Investments and subsidiaries.
Form 10-K, page 157, for CG&E and subsidiaries.
Information Statement, pages 2 and 3, for PSI and subsidiaries.
(c) Directors' and Executive Officers' Contracts and Transactions with
System Companies
For information concerning contracts and transactions with system companies,
see the disclosures made in the:
Proxy Statement, pages 20 through 23, for Cinergy and Investments and
subsidiaries.
Form 10-K, pages 151 through 155, for CG&E and subsidiaries.
Information Statement, pages 14 through 17, for PSI and subsidiaries.
(d) Indebtedness of Directors or Executive Officers to System Companies
None
(f) Directors' and Executive Officers' Rights to Indemnity
The state laws under which each of Cinergy and its domestic direct and
indirect subsidiaries is incorporated provide broadly for indemnification
of directors and officers against claims and liabilities against them in
their capacities as such. Each of such company's articles of incorporation,
charters, by-laws, or regulations identifying these rights to indemnity are
incorporated by reference or contained herein as exhibits.
*The Proxy Statement and Information Statement are hereby incorporated by
reference (see File Nos. 1-11377 and 1-3543, respectively).
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
(1) None(1)
(1) Cinergy and PSI have established separate segregated funds or
political action committees and have incurred certain costs in the
administration of these committees in accordance with the provisions of
the Federal Election Campaign Act.
<TABLE>
<CAPTION>
(2)
Name of Company Name of Recipient or Beneficiary Purpose Account Charged Amount
<S> <C> <C> <C> <C>
Cinergy Democratic Leadership Council Dues and Fees (1) $20,000
Less than $10,000 - 1 beneficiary Support (2) 790
$20,790
CG&E American Coal Ash Association Dues and Fees (2) $62,622
American Gas Association Dues and Fees (1), (2) 64,106
Edison Electric Institute Dues and Fees (2), (3) 65,982
Support (2) 40,507
Global Climate Coalition Dues and Fees (3) 30,000
Greater Cincinnati Chamber of Commerce Dues and Fees (1), (2) 79,768
Support (2) 27,156
Greater Cincinnati Council on World Affairs Dues and Fees (2) 5,242
Support (2), (3) 7,482
Institute on Advanced Manufacturing Science, Inc. Dues and Fees (2), (3) 325,337
Institute of Gas Technology Dues and Fees (2) 21,200
Materials (2) 11,828
Midwest Gas Association Dues and Fees (2), (3) 13,634
Ohio Chamber of Commerce Dues and Fees (2) 15,550
Ohio Electric Utility Institute Dues and Fees (2) 81,508
U.S. Chamber of Commerce Dues and Fees (2) 20,000
Less than $10,000 - 32 beneficiaries Dues and Fees (2), (3) 46,791
Less than $10,000 - 1 beneficiary Support (2) 500
$919,213
ULH&P American Gas Association Dues and Fees (1), (2) $13,130
Less than $10,000 - 14 beneficiaries Dues and Fees (1), (2), & (3) 18,188
Less than $10,000 - 3 beneficiaries Support (2) 2,256
Less than $10,000 - 1 beneficiary Material (2) 162
$33,736
Lawrenceburg Less than $10,000 - 3 beneficiaries Dues and Fees (2) $3,242
$3,242
PSI Alliance for Growth and Progress, Inc. Dues and Fees (2) $10,000
Support (2) 5,000
American Coal Ash Association Dues (2) 25,578
Corporate Community Council Dues (2) 38,550
Edison Electric Institute Dues and Fees (1), (2), & (3) 56,211
Support (2) 6,800
Electric Power Research Institute Dues & Fees (1) & (3) 3,026,267
Support (1) & (3) 364,200
Indiana Chamber of Commerce Dues and Fees (2) 1,159
Support (2) 10,000
Indiana Electric Association Dues and Fees (1), (2), & (3) 173,054
Support (1) 500
Indiana Fiscal Policy Institute Dues (2) 16,500
Indiana Manufacturers Association Dues and Fees (1) & (2) 16,374
Less than $10,000 - 53 beneficiaries Dues and Fees (1) & (2) 25,479
$3,775,672
Power InternationLess than $10,000 - 1 beneficiary Advertising (1) $3,902
$3,902
Cinergy ResourcesLess than $10,000 - 2 beneficiaries Dues and Fees (1) $444
$444
Wholesale Power Less than $10,000 - 1 beneficiary Advertising (2) $1,981
<FN>
*Account Charged:
(1) Income deduction
(2) Operating expense
(3) Other balance sheet accounts
</TABLE>
<PAGE>
ITEM 8. SERVICE, SALES, AND CONSTRUCTION CONTRACTS
Part I
<TABLE>
<CAPTION>
In Effect
Dec. 31,
Serving Receiving Date of 1995
Transaction Company Company Compensation Contract (Yes or No)
(in thousands)
<S> <C> <C> <C> <C> <C>
Propane plant and underground storage cavern ULH&P CG&E $ 244 05/23/61 Yes
Process and sale of recyclable materials Recycling PSI 351 08/01/95 Yes
Process and sale of recyclable materials Recycling CG&E 140 07/31/95 Yes
Liquidation of power plant and other utility equipment(1) PESCO PSI 2,512 10/17/94 No
<FN>
(1) PESCO and CG&E have a similar agreement; however, the consideration paid to PESCO was less than $100,000.
</TABLE>
<TABLE>
<CAPTION>
Serving Receiving
Transaction Company Company Compensation
(in thousands)
<S> <C> <C> <C>
Construction and engineering services(1) CG&E Lawrenceburg $219
ULH&P 2,194
West Harrison 19
Tri-State 161
Customer relations services(1) CG&E Lawrenceburg 52
ULH&P 2,231
West Harrison 21
Gas and/or electric operations(1) CG&E Lawrenceburg 818
ULH&P 5,512
West Harrison 35
Miami 56
Sale of deisel generators PSI Power
International 2,022
</TABLE>
Part II
None
Part III
None
(1) Pursuant to Rel. No. 35-26146, dated October 21, 1994.
<PAGE>
ITE WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part I
(a)Argentina and Costanera
Prior to Costanera's sale in late 1995 of substantially all of its assets
(see blow), Argentina and Costanera, both Idiana corporations, were EWGs.
In November 1995, Costanera, a wholly-owned subsidiary of Argentina, sold
to non-associates its 6% investment in the common stock of Central
Costanera S.A. (Central Costanera). Central Costanera owns and operates
a 1,260-megawatt (mw) dual fired (oil and gas) thermoelectric plant
located in the city of Buenos Aires, Argentina. The investment in
Central Costanera constituted substantially all of the assets of
Costanera. Likewise, Costanera constitutes substantially all of the
assets of Argentina. Therefore, at December 31, 1995, neither Argentina
nor Costanera held any assets. Both companies notified the FERC in
early 1996 that they no longer seek to maintain EWG status.
PSI Energy Argentina
PSI Energy Argentina is a foreign utility company (FUCO).
PSI Energy Argentina, an Indiana corporation, owns an 8% interest in
Distrilec Invesora, S.A. which owns a 51% interest in Edesur S.A., an
electric-distribution network serving the southern half of the city
of Buenos Aires, Argentina.
Argentina, Costanera, and PSI Energy Argentina
The business address of each Argentina, Costanera, and PSI Energy Argentina
Argentina is 251 North Illinois Street, Suite 1410, Indianapolis, Indiana
46204.
(b)Argentina and Costanera
Investments and Argentina hold 100 shares of no par value common stock in
Argentina and Costanera, respectively. At December 31, 1995, Investment's
equity investment in Argentina was $16.8 million, representing the earnings
of its its subsidiary, Costanera.
PSI Energy Argentina
PSI holds 100 shares of PSI Energy Argentina's no par value common stock.
At December 31, 1995, PSI's equity investment in PSI Energy Argentina was
$10.7 million.
Argentina, Costanera, and PSI Energy Argentina
Cinergy has neither directly nor indirectly guaranteed any securities
of Argentina, Costanera, or PSI Energy Argentina. None of these companies
has any debt or other financial obligations outstanding.
(c)Argentina, Costanera, and PSI Energy Argentina
Argentina, Costanera, and PSI Energy Argentina have no debt outstanding at
December 31, 1995.
Earnings for the year ended December 31, 1995, were $7.2 million for
Argentina. Neither Costanera nor PSI Energy Argentina had any earnings or
losses for such period.
(d)Argentina, Costanera, and PSI Energy Argentina
Non-utility service agreement, among Cinergy, non-utility subsidiaries of
Cinergy, and Services. (Pursuant to Rel. No. 35-26146, dated 10-21-94.)
In 1995, Services rendered accounting and legal services to Argentina in
the amount of $124,000.
Other Services
PSI rendered marketing and corporate development services (including
costs for facilities, office supplies, and other overhead charges)
to Argentina during 1995 in the amount of $90,000. (Pursuant to
Rel. No. 35-25674, dated 11-13-92.)
Part II
Argentina, Costanera, and PSI Energy Argentina
See Exhibits H and I*
Part III
Argentina, Costanera, and PSI Energy Argentina
Cinergy had aggregate investments of $16.8 million and $10.7 million,
respectively, in EWGs* and FUCOs at December 31, 1995. The ratio of
Cinergy's aggregate investment in both EWGs and FUCOs to its investment
in domestic public utility subsidiary companies is less than 1%.
*As previously discussed, at December 31, 1995, Argentina and Costanera
held no assets. Given that these two companies were shell companies at
year-end 1995 and have notified the FERC that they no longer seek to
maintain EWG status, the requirement to provide audited financial
statements for these companies has been waived by the Chief Financial
Analyst in the Securities and Exchange Commission's Office of Public
Utility Regulation (Chief Financial Analyst) pursuant to a conversation
with Cinergy's Legal Department on April 2, 1996 (April 1996 discussion).
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Consolidating Financial Statements, Schedules, and Notes
-Notes 1 through 17 to the Financial Statements are incorporated
herein by reference, in Exhibit A (page 24), in the Cinergy
Annual Report on Form 10-K for 1995 (Item 8. Financial
Statements and Supplementary Data).
-Notes 1 through 17 to the Financial Statements are incorporated
herein by reference, in Exhibit A (page 24), in the CG&E
Annual Report on Form 10-K for 1995 (Item 8. Financial
Statements and Supplementary Data).
-Notes 1 through 17 to the Financial Statements are incorporated
herein by reference, in Exhibit A (page 24), in the PSI
Annual Report on Form 10-K for 1995 (Item 8. Financial
Statements and Supplementary Data).
-Notes 1 through 17 to the Financial Statements are incorporated
herein by reference, in Exhibit A (page 24), in the ULH&P
Annual Report on Form 10-K for 1995 (Item 8. Financial
Statements and Supplementary Data).
Exhibits
-F-1 Report of Independent Public Accountants.
-F-2 Consolidating Financial Statements of Cinergy for 1995.
-F-3 Consolidating Financial Statements of CG&E for 1995.
-F-4 Consolidating Financial Statements of Investments for 1995.
-F-5 Consolidating Financial Statements of Power International for 1995.
-F-6 Consolidating Financial Statements of Bruwabel for 1995.
-F-7 Consolidating Financial Statements of PSI for 1995.
-F-8 Consolidating Financial Statements of Argentina for 1995.
-F-9 Item 6. Part III - Supplemental Information Regarding Compensation
and Security Ownership of Officers and Directors of System Companies.
- - H-1 Organizational chart showing relationship of Argentina, PSI Energy
Argentina, and Costanera to other system companies.
- - I-1 Audited Financial Statements of PSI Energy Argentina at or for the year
ended December 31, 1995.
<PAGE>
ITEM 10. EXHIBITS
Copies of the documents listed below which are identified with an
asterisk (*) have heretofore been filed with the SEC and are
incorporated herein by reference and made a part hereof. Exhibits not
so identified are filed herewith unless otherwise stated.
EXHIBIT
DESIGNATION NATURE OF EXHIBIT
A-1 *Annual Report of Cinergy on Form 10-K as amended
April 19, 1996, for the year ended December 31, 1995.
(File No. 1-11377.)
A-2 Annual Report to Shareholders for Cinergy for the year
ended December 31, 1995. (Filed under cover of Form SE.)
A-3 *Annual Report of CG&E on Form 10-K for the year ended
December 31, 1995. (File No. 1-1232.)
A-4 *Annual Report of PSI on Form 10-K for the year ended
December 31, 1995. (File No. 1-3543.)
A-5 *Annual Report of ULH&P on Form 10-K for the year ended
December 31, 1995. (File No. 2-7793.)
B-1 *Certificate of Incorporation of Cinergy. (Exhibit to
Cinergy's 1993 Form 10-K in File No. 1-11377.)
B-2 *By-laws of Cinergy as amended January 25, 1996. (Exhibit
to Cinergy's Form U-1 Declaration filed February 23,
1996, in File No. 70-8807.)
B-3 *Amended Articles of Incorporation of CG&E effective
January 24, 1994. (Exhibit to CG&E's 1993 Form 10-K in
File No. 1-1232.)
B-4 *Regulations of CG&E as amended, adopted June 16, 1995.
(Exhibit to CG&E's Form 8-A dated July 24, 1995, in File
No. 1-1232.)
B-5 *Amended Articles of Consolidation of PSI as amended
April 20, 1995. (Exhibit to PSI's June 30, 1995, Form
10-Q in File No. 1-3543.)
B-6 *By-laws of PSI as amended January 25, 1996. (Exhibit to
PSI's 1995 Form 10-K in File No. 1-3543.)
B-7 *Restated Articles of Incorporation of ULH&P made
effective May 7, 1976. (Exhibit to ULH&P's Form 8-K, May
1976, in File No. 2-7793.)
B-8 *By-laws of ULH&P as amended, adopted by shareholders June
16, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in
File No. 2-7793.)
B-9 Articles of Incorporation of South Construction.
B-10 By-laws of South Construction.
B-11 Articles of Incorporation of PSI Energy Argentina.
B-12 By-laws of PSI Energy Argentina.
B-13 Certificate of Incorporation of Services.
B-14 By-laws of Services.
B-15 Articles of Incorporation of Miami as amended.
B-16 By-laws of Miami.
B-17 Articles of Incorporation of West Harrison as amended.
B-18 By-laws of West Harrison.
B-19 Articles of Incorporation of Lawrenceburg.
B-20 By-laws of Lawrenceburg.
B-21 Articles of Incorporation of Tri-State.
B-22 Regulations of Tri-State.
B-23 Articles of Incorporation of KO Transmission.
B-24 By-laws of KO Transmission.
B-25 Certificate of Incorporation of Investments.
B-26 By-laws of Investments.
B-27 Certificate of Incorporation of CGE ECK.
B-28 By-laws of CGE ECK.
B-29 Certificate of Incorporation of Cinergy Resources.
B-30 By-laws of Cinergy Resources.
B-31 Articles of Incorporation of Technology.
B-32 By-laws of Technology.
B-33 Articles of Incorporation of Argentina.
B-34 By-laws of Argentina.
B-35 Articles of Incorporation of Costanera.
B-36 By-laws of Costanera.
B-37 Articles of Incorporation of PSI International, Inc.
B-38 By-laws of PSI International, Inc.
B-39 Articles of Incorporation of PSI Power Resource
Development, Inc.
B-40 By-laws of PSI Power Resource Development, Inc.
B-41 Articles of Incorporation of PSI Power Resource
Operations, Inc.
B-42 By-laws of PSI Power Resource Operations, Inc.
B-43 Articles of Incorporation of Recycling.
B-44 By-laws of Recycling.
B-45 Articles of Incorporation of PSI Sunnyside, Inc.
B-46 By-laws of PSI Sunnyside, Inc.
B-47 Articles of Incorporation of PSI T&D International, Inc.
B-48 By-laws of PSI T&D International, Inc.
B-49 Articles of Incorporation of PSI Yacyreta, Inc.
B-50 By-laws of PSI Yacyreta, Inc.
B-51 Articles of Incorporation of PESCO.
B-52 By-laws of PESCO.
B-53 Articles of Incorporation of Power International.
B-54 Regulations of Power International.
B-55 Articles of Incorporation of Wholesale Power.
B-56 By-laws of Wholesale Power.
C-1 *Original Indenture (First Mortgage Bonds) between CG&E
and The Bank of New York (as successor Trustee) dated as
of August 1, 1936. (Exhibit to CG&E's Registration
Statement No. 2-2374.)
C-2 *Tenth Supplemental Indenture between CG&E and The Bank of
New York dated as of July 1, 1967. (Exhibit to CG&E's
Registration Statement No. 2-26549.)
C-3 *Eleventh Supplemental Indenture between CG&E and The Bank
of New York dated as of May 1, 1969. (Exhibit to CG&E's
Registration Statement No. 2-32063.)
C-4 *Thirteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of November 1, 1971. (Exhibit
to CG&E's Registration Statement No. 2-41974.)
C-5 *Fourteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of November 2, 1972. (Exhibit
to CG&E's Registration Statement No. 2-60961.)
C-6 *Fifteenth Supplemental Indenture between CG&E and The
Bank of New York dated as of August 1, 1973. (Exhibit to
CG&E's Registration Statement No. 2-60961.)
C-7 *Thirty-second Supplemental Indenture between CG&E and The
Bank of New York dated as of December 15, 1991. (Exhibit
to CG&E's Registration Statement No. 33-45115.)
C-8 *Thirty-third Supplemental Indenture between CG&E and The
Bank of New York dated as of September 1, 1992. (Exhibit
to CG&E's Registration Statement No. 33-53578.)
C-9 *Thirty-fourth Supplemental Indenture between CG&E and The
Bank of New York dated as of October 1, 1993. (Exhibit to
CG&E's September 30, 1993, Form 10-Q in File No. 1-1232.)
C-10 *Thirty-fifth Supplemental Indenture between CG&E and The
Bank of New York dated as of January 1, 1994. (Exhibit to
CG&E's Registration Statement No. 33-52335.)
C-11 *Thirty-sixth Supplemental Indenture between CG&E and The
Bank of New York dated as of February 15, 1994. (Exhibit
to CG&E's Registration Statement No. 33-52335.)
C-12 *Loan Agreement between CG&E and County of Boone, Kentucky
dated as of February 1, 1985. (Exhibit to CG&E's 1984
Form 10-K in File No. 1-1232.)
C-13 *Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of December 1, 1985.
(Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.)
C-14 *Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of December 1, 1985.
(Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.)
C-15 *Repayment Agreement between CG&E and The Dayton Power and
Light Company dated as of December 23, 1992. (Exhibit to
CG&E's 1992 Form 10-K in File No. 1-1232.)
C-16 *Loan Agreement between CG&E and State of Ohio Water
Development Authority dated as of January 1, 1994.
(Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.)
C-17 *Loan Agreement between CG&E and State of Ohio Air Quality
Development Authority dated as of January 1, 1994.
(Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.)
C-18 *Loan Agreement between CG&E and County of Boone, Kentucky
dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form
10-K in File No. 1-1232.)
C-19 *Original Indenture (Unsecured Debt Securities) between
CG&E and The Fifth Third Bank dated as of May 15, 1995.
(Exhibit to CG&E's Form 8-A dated July 24, 1995, in File
No. 1-1232.)
C-20 *First Supplemental Indenture between CG&E and The Fifth
Third Bank dated as of June 1, 1995. (Exhibit to CG&E's
June 30, 1995, Form 10-Q in File No. 1-1232.)
C-21 *Second Supplemental Indenture between CG&E and The Fifth
Third Bank dated as of June 30, 1995. (Exhibit to CG&E's
Form 8-A dated July 24, 1995, in File No. 1-1232.)
C-22 *Loan Agreement between CG&E and the State of Ohio Air
Quality Development Authority dated as of September 13,
1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in
File No. 1-1232.)
C-23 *Loan Agreement between CG&E and the State of Ohio Air
Quality Development Authority dated as of September 13,
1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in
File No. 1-1232.)
C-24 *Original Indenture (First Mortgage Bonds) dated September
1, 1939, between PSI and The First National Bank of
Chicago, as Trustee (Exhibit A-Part 3 in File No. 70-
258), and LaSalle National Bank as successor Trustee
(Supplemental Indenture dated March 30, 1984).
C-25 *Nineteenth Supplemental Indenture between PSI and The
First National Bank of Chicago dated January 1, 1972.
(Exhibit to File No. 2-42545.)
C-26 *Twenty-third Supplemental Indenture between PSI and The
First National Bank of Chicago dated January 1, 1977.
(Exhibit to File No. 2-57828.)
C-27 *Twenty-fifth Supplemental Indenture between PSI and The
First National Bank of Chicago dated September 1, 1978.
(Exhibit to File No. 2-62543.)
C-28 *Twenty-seventh Supplemental Indenture between PSI and The
First National Bank of Chicago dated March 1, 1979.
(Exhibit to File No. 2-63753.)
C-29 *Thirty-fifth Supplemental Indenture between PSI and The
First National Bank of Chicago dated March 30, 1984.
(Exhibit to PSI's 1984 Form 10-K in File No. 1-3543.)
C-30 *Thirty-ninth Supplemental Indenture between PSI and The
First National Bank of Chicago dated March 15, 1987.
(Exhibit to PSI's 1987 Form 10-K in File No. 1-3543.)
C-31 *Forty-first Supplemental Indenture between PSI and The
First National Bank of Chicago dated June 15, 1988.
(Exhibit to PSI's 1988 Form 10-K in File No. 1-3543.)
C-32 *Forty-second Supplemental Indenture between PSI and The
First National Bank of Chicago dated August 1, 1988.
(Exhibit to PSI's 1988 Form 10-K in File No. 1-3543.)
C-33 *Forty-fourth Supplemental Indenture between PSI and The
First National Bank of Chicago dated March 15, 1990.
(Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.)
C-34 *Forty-fifth Supplemental Indenture between PSI and The
First National Bank of Chicago dated March 15, 1990.
(Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.)
C-35 *Forty-sixth Supplemental Indenture between PSI and The
First National Bank of Chicago dated June 1, 1990.
(Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.)
C-36 *Forty-seventh Supplemental Indenture between PSI and The
First National Bank of Chicago dated July 15, 1991.
(Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.)
C-37 *Forty-eighth Supplemental Indenture between PSI and The
First National Bank of Chicago dated July 15, 1992.
(Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.)
C-38 *Forty-ninth Supplemental Indenture between PSI and The
First National Bank of Chicago dated February 15, 1993.
(Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.)
C-39 *Fiftieth Supplemental Indenture between PSI and The First
National Bank of Chicago dated February 15, 1993.
(Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.)
C-40 *Fifty-first Supplemental Indenture between PSI and The
First National Bank of Chicago dated February 1, 1994.
(Exhibit to PSI's 1993 Form 10-K in File No. 1-3543.)
C-41 *Indenture (Secured Medium-term Notes, Series A), dated
July 15, 1991, between PSI and The First National Bank of
Chicago, as Trustee. (Exhibit to PSI's Form 10-K/A,
Amendment No. 2, dated July 15, 1993, in File No. 1-3543.)
C-42 *Indenture (Secured Medium-term Notes, Series B), dated
July 15, 1992, between PSI and The First National Bank of
Chicago, as Trustee. (Exhibit to PSI's Form 10-K/A,
Amendment No. 2, dated July 15, 1993, in File No. 1-3543.)
C-43 *Original Indenture (First Mortgage Bonds) between ULH&P
and The Bank of New York dated as of February 1, 1949.
(Exhibit to ULH&P's Registration Statement No. 2-7793.)
C-44 *Fifth Supplemental Indenture between ULH&P and The Bank
of New York dated as of January 1, 1967. (Exhibit to
CG&E's Registration Statement No. 2-60961.)
C-45 *Seventh Supplemental Indenture between ULH&P and The Bank
of New York dated as of October 1, 1973. (Exhibit to
CG&E's Registration Statement No. 2-60961.)
C-46 *Eighth Supplemental Indenture between ULH&P and The Bank
of New York dated as of December 1, 1978. (Exhibit to
CG&E's Registration Statement No. 2-63591.)
C-47 *Thirteenth Supplemental Indenture between ULH&P and The
Bank of New York dated as of August 1, 1992. (Exhibit to
ULH&P's 1992 Form 10-K in File No. 2-7793.)
C-48 *Original Indenture (Unsecured Debt Securities) between
ULH&P and The Fifth Third Bank dated as of July 1, 1995.
(Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No.
2-7793.)
C-49 *First Supplemental Indenture between ULH&P and The Fifth
Third Bank dated as of July 15, 1995. (Exhibit to ULH&P's
June 30, 1995, Form 10-Q in File No. 2-7793.)
C-50 Original Indenture (First Mortgage Bonds) between
Lawrenceburg and Star Bank, N.A. dated as of March 1,
1955. (Not filed herewith, pursuant to the April 1996
discussion with the Chief Financial Analyst.)
C-51 Seventh Supplemental Indenture between Lawrenceburg and
Star Bank, N.A. dated as of October 1, 1986. (See
preceding item.)
C-52 *Agreement for Purchase and Sale of Assets, dated March
31, 1994, by and between Columbia Gas as Seller and KO
Transmission as Buyer. (Exhibit to Cinergy's Form U5B
filed January 23, 1995.)
C-53 *Agreement for Purchase and Sale of Line AM-4, dated March
31, 1994, by and between Columbia Gas as Seller and KO
Transmission as Buyer. (Exhibit to Cinergy's Form U5B
filed January 23, 1995.)
D-1 Agreement between Cinergy and subsidiary companies for
filing consolidated income tax returns and for allocation
of consolidated income tax liabilities and benefits.
F-1 Opinion of Independent Public Accountants.
F-2 Cinergy's Consolidating Financial Statements at or for the
year ended December 31, 1995.
F-3 CG&E's Consolidating Financial Statements at or for the
year ended December 31, 1995.
F-4 Investments' Consolidating Financial Statements at or for
the year ended December 31, 1995.
F-5 Power International's Consolidating Financial Statements
at or for the year ended December 31, 1995.
F-6 Bruwabel's Consolidating Financial Statements at or for
the year ended December 31, 1995.
F-7 PSI's Consolidating Financial Statements at or for the
year ended December 31, 1995.
F-8 Argentina's Consolidating Financial Statements at or for
the year ended December 31, 1995.
F-9 Item 6. Part III - Supplemental Information Regarding
Compensation and Security Ownership of Officers and
Directors of System Companies.
F-10 *Classified plant accounts and related depreciation or
amortization reserve schedules included in the Ferc Form
No. 1 of PSI. (Pursuant to the April 1996 discussion with
the Chief Financial Analyst, a paper copy of such annual
report has been provided to the Chief Financial Analyst
concurrently herewith.)
F-11 *Classified plant accounts and related depreciation or
amortization reserve schedules included in the FERC Form
Nos. 1 and 2 of CG&E. (Pursuant to the April 1996
discussion with the Chief Financial Analyst, paper copies
of such annual reports have been provided to the Chief
Financial Analyst concurrently herewith.)
F-12 *Classified plant accounts and related depreciation or
amortization reserve schedules included in the FERC Form
Nos. 1 and 2 of ULH&P. (Pursuant to the April 1996
discussion with the Chief Financial Analyst, paper copies
of such annual reports have been provided to the Chief
Financial Analyst concurrently herewith.)
F-13 *Classified plant accounts and related depreciation or
amortization reserve schedules included in the Annual
Report of West Harrison to the Indiana Utility Regulatory
Commission (IURC). (Pursuant to the April 1996 discussion
with the Chief Financial Analyst, a paper copy of such
annual report has been provided to the Chief Financial
Analyst concurrently herewith.)
F-14 *Classified plant accounts and related depreciation or
amortization reserve schedules included in the Annual
Report of Lawrenceburg to the IURC. (Pursuant to the
April 1996 discussion with the Chief Financial Analyst, a
paper copy of such annual report has been provided to the
Chief Financial Analyst concurrently herewith.)
G-1 Financial Data Schedules for Cinergy and Subsidiaries.
(Included in electronic submission only.)
H-1 Organizational chart showing relationship of Argentina,
PSI Energy Argentina, and Costanera to other system
companies.
I-1 Audited Financial Statements of PSI Energy Argentina
at or for the year ended December 31, 1995.
I-2(a) Unuaudited Financial Statements of Argentina at or for the
year ended December 31, 1995.
I-3(a) Unaudited Financial Statements of Costanera at or for the
year ended December 31, 1995.
(a) As described in "Item 9. Wholesale Generators and Foreign Utility
Companies," in 1995, Costanera sold its only investment, an interest
in the 1,260-mw Costanera power plant in Buenos Aires, Argentina, to
non-associated companies. Likewise, Costanera constituted
substantially all of the assets of Argentina. Given that these two
companies were shell companies at December 31, 1995, and have
notified the FERC that they no longer seek to maintain EWG status,
the requirement to provide audited financial statements for these
companies was waived by the Chief Financial Analyst in the April
1996 discussion. The unaudited financial statements of Argentina
and Costanera are included in Exhibits F-4 and F-8 herein.
<PAGE>
SIGNATURE
Each 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.
The signature of each undersigned company shall be deemed to relate only
to matters having reference to such company or its subsidiaries.
CINERGY CORP.
/S/ William L. Sheafer
By: William L. Sheafer
Treasurer
Date: April 30, 1996
ARTICLES OF REORGANIZATION
of
SOUTH CONSTRUCTION COMPANY
The provisions of the original Articles of Incorporation or
Association are hereby restated in conformity with "The
Indiana General Corporation Act" approved March 16, 1929, Chapter
215 of the Acts of the Indiana General Assembly for 1929, as
follows:
1. The name of this corporation shall be SOUTH CONSTRUCTION
COMPANY, INC.
2. The purpose or purposes for which it is reorganized are as
follows:
To construct, erect and install, and to dismantle, salvage
and scrap, railroads, interurban railroads, street railroads,
electric transmission lines and distribution systems, highways,
streets, buildings or other structures and carry on a general
construction, dismantling and salvage business, and to buy, sell
and deal in used railroad, interurban railroad, street railroad,
electrical and building supplies, materials and equipment, and to
buy, sell, lease and deal in real estate and any interest
therein.
3. The period during which it is to continue as a reorganized
corporation is perpetual.
4. The post office address of its principal office is 110 North
Illinois Street, Indianapolis, Marion County, Indiana.
The name of its resident agent is W. Marshall Dale, 110
North Illinois Street, Indianapolis, Marion County, Indiana.
5. The total number of shares into which its authorized capital
stock is to be divided is ten (10) consisting of shares as
follows:
10 shares having a par value of $100.00
no shares having no par value.
6. (If the shares are to be divided into classes or kinds the
designations of the different classes, the number and par value,
if any of the shares of each class, and either (a) a statement of
the relative rights, preferences, limitations and restrictions of
each class, or (b) a provision expressly vesting authority in the
board of directors, subject to such restrictions as may be
provided, to determine the relative rights, preferences,
limitations and restrictions (other than voting rights) of each
class by resolution or resolutions adopted prior to the issuance
of any of the shares of such class; and, if the shares of any
class are to be issuable in series, descriptions of the several
series, and either (a) a statement of the relative rights,
preferences, limitations and restrictions of each series, or (b)
a provision expressly vesting authority in the board of
directors, subject to such restrictions as may be provided, to
determine the relative rights, preferences, limitations and
restrictions (other than voting rights) of each series by
resolution or resolutions adopted prior to the issuance of any of
the shares of such series.)
Indicate here: none
7. (If the shares are to be divided into classes or kinds, a
statement of the voting rights and powers, if any, of the shares
of each class, and of each series if the shares of any class are
to be issuable in series, including the extent, if any, to which
the shares of each such class and series shall be entitled to
vote on questions of merger, consolidation and the sale of all or
of substantially all of the assets of the corporation.)
Indicate here: none
8. The amount of paid in capital with which this reorganized
corporation will continue in business is $1000.00. (This must
not be less than $500.00.)
9. The number of directors of this corporation shall be three
(This must be an exact number and cannot be stated in the
alternative).
10. The names and addresses of the first board of directors of
the reorganized corporation are as follows:
Chester D. Porter, 110 North Illinois St., Indianapolis, Marion
County,
Indiana
Edwin J. Booth, 110 North Illinois St., Indianapolis, Marion
County, Indiana
W. Marshall Dale, 110 North Illinois St., Indianapolis, Marion ,
Indiana
11. (Any other provisions, consistent with the laws of this
state, for the regulation of the business and conduct of the
affairs of the corporation, and creating, defining, limiting or
regulating the powers of the corporation of the directors or of
the shareholders or any class or classes of shareholders.)
Indicate here:
Witness our hands and seals this 31st day of May, 1934, at
Indianapolis, Indiana.
/s/ Chester D. Porter
Chester D. Porter
President
/s/ Lois Allen
Lois Allen
Secretary
<PAGE>
STATE OF INDIANA
CCOUNTY OF MARION
Before me, Dorotha A. Gossett, a Notary Public in and for
said
County and State, personally appeared Chester D. Porter and Lois
Allen
to me well known to be the President and Secretary, respectively
of the above named
corporation and severally acknowledged the execution of the
foregoing Articles of
Reorganization and swore to the contents thereof this 31st day
of May, 1934.
(SEAL)
My commission expires June 13, 1937.
BY-LAWS OF
SOUTH CONSTRUCTION COMPANY, INC.
1.
DIRECTORS
The business and prudential affairs of this Company shall be
managed by the Board of Directors, three in number.
2.
FISCAL YEAR
The fiscal year of the Company shall end on the 30th day of
June in each year. The annual meeting of the stockholders shall
be held at the office of the company on the last Monday in
February in each year at 9:40 o'clock A.M.
3.
OFFICERS
The officers of the Company shall be a President, Vice-
President, Secretary and Treasurer and such other officers as the
Board of Directors may designate. The office of Secretary and
Treasurer may be filled by one person at the option of the Board
of Directors.
4.
DUTIES AND POWERS OF OFFICERS
The President shall have the usual powers and duties; and
shall have the power to employ and discharge employees, make
contracts for and on behalf of the Company and have such general
supervision over the affairs of said Company as may be necessary,
and carry out and execute the orders and directions of the Board
of Directors. The Vice-President shall have the powers and
perform the duties of the President in the absence or disability
of the President and shall have such other powers and duties as
may be delegated to him by the Board of Directors or the
President.
5.
SIGNATURES RECORDS AMENDMENTS
All checks, notes, drafts, demands or orders for the payment
of money shall be signed by such officers as the Board of
Directors from time to time, by resolution, may direct. The
Secretary and Treasurer shall procure and keep the necessary
minute and account books. The Directors may make, adopt, amend,
alter and repeal these by-laws at any special or regular meeting
of the Board of Directors.
6.
DIRECTORS MEETINGS
The Directors shall meet regularly once a month at the
general office of the Company in the City of New Albany on the
2nd Monday of each month at 10 o'clock A.M. without notice
thereof, and the President of the Company shall have the power to
call special meetings of said directors at any time by giving one
day's written notice of any such special meeting or any two
directors of said Company may call a special meeting of said
Board of Directors by giving to the Directors one day's written
notice of such special call.
7.
These by-laws shall be in full force and effect from and
after their adoption unless altered, repealed or modified as
aforesaid.
ARTICLES OF INCORPORATION
OF
PSI ENERGY ARGENTINA, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"), execute
the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Energy Argentina, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the
stock of other energy, environmental, or functionally related
corporations, and to do every act and thing covered generally by
the denomination "holding company," including the directing of
the operations of other corporations through the ownership of
stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production and distribution
facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage in any other lawful energy,
environmental, or functionally related business permitted to a
corporation organized under the Act;
(e) To carry on the business of the
Corporation either within or beyond the limits of the State of
Indiana or the United States or its territories, and, in general,
to do and perform any and all things necessary, convenient, or
proper for the carrying out or accomplishment of the objects or
purposes specified in this ARTICLE II, or any of them, or any
objects or purposes incidental thereto, and to possess and enjoy
all of the rights, powers, privileges, authority, and immunities
which may be granted to bodies corporate under the Act and the
laws of the State of Indiana;
(f) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, foreign or domestic governments or other legal
entities, domestic or foreign, and to pay in whole or in part in
cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property,
stocks, bonds, debentures, notes, evidences of indebtedness, or
other securities, contracts, or obligations, to receive, collect,
and dispose of the interest, dividends, and income arising from
the property, and to possess and exercise in respect of the same,
all the rights, powers, and privileges of ownership, including
all voting powers on any stocks so owned;
(g) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or
other legal entity, domestic or foreign, any shares of stock, or
any bonds, debentures, evidences of indebtedness, or other
securities of which are held by this Corporation or in which it
shall have any interest, and to do any acts designed to protect,
preserve, improve, or enhance the value of any property at any
time held or controlled by this Corporation or in which it at
that time may be interested;
(h) To enter into, make, perform, and carry
out contracts of any kind for any lawful purpose with any
individual, association, partnership, or corporation, foreign or
domestic government, or other legal entity;
(i) To purchase, acquire, lease, own, and
enjoy any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(j) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development, or improvement of, or to
turn to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(k) To buy, lease, or otherwise acquire, so
far as may be permitted by law, the whole or any part of the
business, good will, and assets of any person, firm, association,
or corporation (either foreign or domestic), suitable,
convenient, advantageous, or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote, and participate in
financial, commercial, mercantile, and other business, works,
contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Cheryl M. Foley, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations, and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations, and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B)(iii) hereof; and each share of each series shall be
identical in all respects with the other shares of such series,
except as to the dates from which dividends thereon shall be
cumulative. Shares of Cumulative Preferred Stock shall be issued
only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations, and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the
number of shares which shall constitute such series, which number
may be varied from time to time by like action of the Board of
Directors or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such
series in the event of any dissolution, liquidation, or winding
up of the affairs of the Corporation, which amount may differ in
the case of a voluntary or involuntary dissolution, liquidation,
or winding up of the affairs of the Corporation.
(h) Any other rights (other than voting
rights), preferences, qualifications, limitations, and
restrictions in respect of shares of such series, which are not
in conflict with the rights (other than voting rights),
preferences, qualifications, limitations, and restrictions
expressly provided in this ARTICLE V (B)(i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed, or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i)(h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution,
liquidation, or winding up of the affairs of the Corporation,
then, before any distribution or payment shall be made to the
holders of any class of stock ranking junior to the Cumulative
Preferred Stock, the holders of the Cumulative Preferred Stock
shall be entitled to be paid in full the respective amounts fixed
in accordance with the provisions of subdivision (i)(g) under
"Grant of Authority to Board of Directors" in this ARTICLE V (B),
together with a sum, in the case of each share, computed at the
annual dividend rate for the series of which the particular share
is a part, from the date on which dividends on such shares became
cumulative to and including the date fixed for such distribution
or payment, less the aggregate amount of all dividends which have
theretofore been paid thereon or for which moneys for payment in
full have been set apart and remain available for payment. If
such payment shall have been made in full to the holders of the
Cumulative Preferred Stock, or moneys made available for such
payment in full, the remaining assets and funds of the
Corporation shall be distributed among the holders of the classes
of stock ranking junior to the Cumulative Preferred Stock,
according to their respective rights and preferences and in each
case according to their respective shares. If, upon any
dissolution, liquidation, or winding up of the affairs of the
Corporation, the assets available are not sufficient to pay in
full the amounts so payable to the holders of all outstanding
shares of Cumulative Preferred Stock, the holders of all series
of Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which
they would otherwise be respectively entitled. A consolidation,
merger, or reorganization of the Corporation with any other
corporation or corporations, or a reorganization of the
Corporation alone, or a sale of all or substantially all of the
assets of the Corporation, shall not be considered a dissolution,
liquidation, or winding up of the Corporation within the meaning
of these provisions.
(c) The Cumulative Preferred Stock of any
series may be redeemed, as a whole or in part, at the option of
the Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision
(i)(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which moneys for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption), and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversation or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii)(c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii)(c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B)(iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize, or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the
Corporation Available for the Payment of Interest Charges for any
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the month within which such
additional shares of the Cumulative Preferred Stock or shares of
stock on a parity therewith or securities convertible into such
shares are proposed to be issued, shall have been at least one
and one-half times the aggregate of (x) the dividend requirements
for a twelve months' period upon all shares of the Cumulative
Preferred Stock and stock, if any, ranking prior to or on a
parity with the Cumulative Preferred Stock as to dividends or
assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the
interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the
issuance of the shares or convertible securities proposed to be
issued, and
(B) the Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation, or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration, or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration, or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation, or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved, or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation, or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase, or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital, or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity.
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to
preferential dividends on Preferred Stock (fixed in accordance
with the provisions of Section B of this ARTICLE V), if any,
shall have been met and after the Corporation shall have complied
with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of Section B of this
ARTICLE V) and subject further to any other conditions which may
be fixed in accordance with the provisions of Section B of this
ARTICLE V, then, but not otherwise, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or
these Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held
by such holder on each matter voted upon by the shareholders and
any such right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants, or other
rights to purchase or acquire shares of any class or series of
stock or of other securities of the Corporation shall have any
preemptive right to purchase, acquire, or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures, or
other securities convertible into or exchangeable for stock of
any class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations, or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change,
or repeal any provision contained in the Articles of
Incorporation, or in any amendment thereto, in the manner now or
hereafter prescribed by law, but subject to such conditions and
limitations as are hereinbefore prescribed, and all rights
conferred upon shareholders in the Articles of Incorporation of
this Corporation, or any amendment thereto, are granted subject
to this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold, and dispose of any shares of its stock of any
class heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification, or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Cheryl M. Foley
Cheryl M. Foley
DATED: June 5, 1992
This instrument
prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main
Street
Plainfield,
Indiana 46168
BY-LAWS
OF
PSI ENERGY ARGENTINA, INC.
<PAGE>
BY-LAWS
OF
PSI ENERGY ARGENTINA, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of PSI Energy Argentina,
Inc. shall be at 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204; and the corporation may have such
other offices at such other places as the board of directors may
from time to time designate, or as the business of the
corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the city of Indianapolis,
Indiana, or at such other place within or outside the state of
Indiana through the use of any means of communication by which
all shareholders participating may simultaneously hear each other
at the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in the shareholder's name on the books of the
corporation, except as otherwise provided by law or by the
articles of incorporation and except that no shares shall be
voted at any meeting upon which any installment is due and
unpaid, or which belongs to the corporation, or which shall have
been transferred on the books of the corporation within such
number of days, not exceeding seventy, next preceding the date of
such meeting as the board of directors shall determine, or, in
the absence of such determination, within ten days next preceding
the date of such meeting. At any adjourned meeting of
shareholders, the board of directors shall fix a record date for
shareholders entitled to vote at such adjourned meeting which
must be a new date if the meeting is adjourned for more than one
hundred twenty days.
A plurality vote shall be sufficient to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote at such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by an inspector,
(ii) where voting is to be by ballot on any question, the polls
shall be opened and closed and the ballots shall be taken in
charge by such inspector, and (iii) all questions touching the
qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by such
inspector. Such inspector may be appointed by the board of
directors before such meeting, or, if no such appointment shall
have been made, then by the presiding officer at such meeting.
In the event for any reason the inspector previously appointed
shall fail to attend such meeting, or being present will not or
cannot act in such capacity, then an inspector in place of such
inspector failing to attend or not acting shall be appointed by
the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the person
to act as inspector at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided however, that nothing in this Article II shall be deemed
to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and any such business not properly brought
before the annual meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and the defective nomination shall be
disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than two (2) nor more than nine (9) directors. A director shall
hold office until the annual meeting for the year in which the
director's term expires and until the director's successor shall
be elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in these by-laws, disqualification or removal from
office. Any vacancy on the board of directors that results from
other than an increase in the number of directors may be filled
by a majority of the board of directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the board of directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. The chairman shall,
when present, preside at all meetings of the shareholders and, in
the absence of the chairman, the president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the chairman shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
chairman, the powers and duties of the chairman shall, for the
time being, devolve upon and be exercised by the president,
unless otherwise ordered by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for the
president by the board of directors or the chairman. The
president shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by a vice president,
unless otherwise ordered by the board of directors or the
chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. The
vice president and general manager shall, subject to the other
provisions of these by-laws, have such other powers and perform
such other duties as usually devolve upon the vice president and
general manager of a corporation, and such further duties as may
be prescribed for the president and general manager by the board
of directors, the chairman or the president. The vice president
and general manager shall report to the chairman. In case of the
absence, disability, death, resignation or removal from office of
the vice president and general manager, the powers and duties of
the vice president and general manager shall, for the time being,
devolve upon and be exercised by the president, unless otherwise
ordered by the board of directors, the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the secretary, the powers and duties of the secretary shall, for
the time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the chairman, the president or a vice president.
SECTION 10. Each of the assistant secretaries shall assist
in the secretarial duties and shall have such other powers and
duties as may be prescribed for such assistant secretary by the
board of directors, or be delegated to such assistant secretary
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the secretary, those powers and duties shall, for the
time being, devolve upon such one of the assistant secretaries as
the board of directors, the chairman, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and such
assistant secretary shall thereupon, during such period, exercise
and perform all of the powers and duties of the secretary, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. The
treasurer shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. The
treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper receipts or
making proper vouchers for such disbursements and shall preserve
the same at all times during the treasurer's term of office.
When necessary or proper, the treasurer shall endorse on behalf
of the corporation all checks, notes or other obligations payable
to the corporation or coming into the treasurer's possession for
or on behalf of the corporation and shall deposit the funds
arising therefrom together with all other funds and valuable
effects of the corporation coming into the treasurer's possession
in the name and to the credit of the corporation in such
depositories as the board of directors from time to time, by
resolution, shall direct. The treasurer shall have such other
powers and duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
The treasurer shall render to the chairman, president, a
vice president and the board of directors, at the regular
meetings of the board of directors, or whenever the same shall be
required, an account of all the treasurer's transactions as
treasurer and of the financial condition of the corporation. The
treasurer shall give the corporation a bond, if required by the
board of directors, in such an amount and with such surety or
sureties as may be ordered by the board, for the faithful
performance of the duties of the treasurer's office and for the
restoration to the corporation, in case of the treasurer's death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
the treasurer's possession or under the treasurer's control
belonging to the corporation.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
in the duties of the treasurer, and shall have such other powers
and duties as may be prescribed for the assistant treasurer by
the board of directors or be delegated to the assistant treasurer
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the treasurer, those powers and duties shall, for the
time being, devolve upon such one of the assistant treasurers as
the board of directors, the chairman, the president, a vice
president or the treasurer may designate, or, if there be but one
assistant treasurer, then upon such assistant treasurer; and such
assistant treasurer shall thereupon, during such period, exercise
and perform all of the powers and duties of the treasurer, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president. Each or any
assistant treasurer shall likewise give the corporation a bond,
if required by the board of directors, in such amount and with
such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. The comptroller shall have
executive direction of the bookkeeping and accounting departments
and shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. The comptroller shall have such other powers and
duties as are incident to the office of comptroller of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the comptroller, the powers
and duties of the comptroller shall be delegated by the board of
directors, the chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. The auditor shall examine the
accounts of all officers and employees from time to time, as
often as practicable and shall see that proper returns are made
of all receipts from all sources and that correct vouchers are
provided for disbursements for any purpose. The auditor shall
have such other powers and duties as are commonly incident to the
office of auditor of a corporation, subject at all times to the
direction and control of the board of directors, the chairman,
the president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of the shareholder's
shares, shall be kept at the principal office of the corporation
in the state of Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if
the chairman be present, or in the chairman's absence by the
president of this corporation if the president be present, or in
the absence of both such chairman and such president by any vice
president of this corporation who may be present. Whenever, in
the judgment of the chairman, the president or a vice president
of this corporation, it is desirable for this corporation to
execute a proxy or give a shareholder's consent in respect of any
share or shares of stock issued by any other corporation and
owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the chairman, the
president or a vice president of this corporation, and shall be
attested by the secretary or an assistant secretary of this
corporation. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall
have full right, power and authority to vote the share or shares
of stock issued by such other corporation and owned by this
corporation the same as such share or shares might be voted by
this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors from time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or
repealed, in whole or in part, and new by-laws may be adopted at
any annual, regular or special meeting of the board of directors
by the affirmative vote of a majority of the members of the board
of directors.
CERTIFICATE OF INCORPORATION
OF
Cinergy Services, Inc.
FIRST: The name of the Corporation is Cinergy
Services, Inc. (hereinafter the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be
organized under the General Corporation Law of the State of
Delaware as set forth in Title 8 of the Delaware Code (the
"GCL"), including, but not limited to, the performance of
activities, such as managerial, financial, accounting, legal,
engineering, construction, purchasing, marketing, auditing,
statistical, dispatching, advertising, publicity, tax, research,
and other similar services.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is one hundred (100)
shares of Common Stock, each having a par value of five cents
($.05).
FIFTH: The name and mailing address of the Sole
Incorporator is as follows:
Name Address
Deborah M. Reusch P.O. Box 636
Wilmington, DE 19899
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors
and stockholders:
(1) The business and affairs of the Corporation
shall be managed by or under the direction of the Board of
Directors.
(2) The directors shall have concurrent power
with the stockholders to make, alter, amend, change, add to
or repeal the By-Laws of the Corporation.
(3) The number of directors of the Corporation
shall be as from time to time fixed by, or in the manner
provided in, the By-Laws of the Corporation. Election of
directors need not be by written ballot unless the By-Laws
so provide.
(4) No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages
for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or
modification of this Article SIXTH by the stockholders of
the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the
time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
(5) In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them,
the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised
or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation,
and any By-Laws adopted by the stockholders; provided,
however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been
adopted.
SEVENTH: Meetings of stockholders may be held within
or without the State of Delaware, as the By-Laws may provide.
The books of the Corporation may be kept (subject to any
provision contained in the GCL) outside the State of Delaware at
such place or places as may be designated from time to time by
the Board of Directors or in the By-Laws of the Corporation.
EIGHTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator
hereinbefore named, for the purpose of forming a corporation
pursuant to the GCL, do make this Certificate, hereby declaring
and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this
23rd day of February, 1994.
/s/ Deborah M. Reusch
Deborah M. Reusch
Sole Incorporator
BY-LAWS
OF
CINERGY SERVICES, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office
of the Corporation shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also
have offices at such other places both within and without the
State of Delaware as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stock-
holders for the election of directors or for any other purpose
shall be held at such time and place, either within or without
the State of Delaware as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of
Stockholders shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the
stockholders shall elect by a plurality vote a Board of
Directors, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting
stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than
ten nor more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise pre-
scribed by law or by the Certificate of Incorporation, Special
Meetings of Stockholders, for any purpose or purposes, may be
called by either (i) the Chairman, if there be one, or (ii) the
President, and shall be called by any such officer at the request
in writing of a majority of the Board of Directors or at the
request in writing of stockholders owning a majority of the
capital stock of the Corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Written notice of a Special
Meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be
given not less than ten nor more than sixty days before the date
of the meeting to each stockholder entitled to vote at such
meeting.
Section 4. Quorum. Except as otherwise provided by
law or by the Certificate of Incorporation, the holders of a
majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed.
If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each stock-
holder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law,
the Certificate of Incorporation or these By-Laws, any question
brought before any meeting of stockholders shall be decided by
the vote of the holders of a majority of the stock represented
and entitled to vote thereat. Each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat held by
such stockholder. Such votes may be cast in person or by proxy
but no proxy shall be voted on or after three years from its
date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall
be cast by written ballot.
Section 6. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of Incorporation,
any action required or permitted to be taken at any Annual or
Special Meeting of Stockholders of the Corporation, may be taken
without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not
consented in writing.
Section 7. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 8. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list
required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The
Board of Directors shall consist of not less than one nor more
than fifteen members, the exact number of which shall be fixed by
the Board of Directors. Except as provided in Section 2 of this
Article, directors shall be elected by a plurality of the votes
cast at Annual Meetings of Stockholders, and each director so
elected shall hold office until the next Annual Meeting and until
his successor is duly elected and qualified, or until his earlier
resignation or removal. Any director may resign at any time upon
notice to the Corporation. Directors need not be stockholders.
Any director may be removed at any time with or without cause by
a majority vote of the stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by the stockholders, and the
directors so chosen shall hold office until the next annual
election and until their successors are duly elected and quali-
fied, or until their earlier resignation or removal.
Section 3. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the
Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-
Laws directed or required to be exercised or done by the
stockholders.
Section 4. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, or any
directors. Notice thereof stating the place, date and hour of
the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting,
by telephone or telegram on twenty-four (24) hours' notice, or on
such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or
these By-Laws, at all meetings of the Board of Directors, a
majority of the entire Board of Directors 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. If a quorum
shall not be present at any meeting of the Board of Directors,
the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws,
any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken
without a meeting, if all the members of the Board of Directors
or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone.
Unless otherwise provided by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in
the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall
have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
Section 9. Compensation. The directors may be paid
their expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee
meetings.
Section 10. Interested Directors. No contract or
transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the
material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a
President, a Secretary and a Treasurer. The Board of Directors,
in its discretion, may also choose a Chairman of the Board of
Directors (who must be a director) and one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation
need not be stockholders of the Corporation nor, except in the
case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its
first meeting held after each Annual Meeting of Stockholders
shall elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board
of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any officer elected by the
Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy
occurring in any office of the Corporation shall be filled by the
Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The
Chairman of the Board of Directors, if there be one, shall
preside at all meetings of the stockholders and of the Board of
Directors. He shall be the Chief Executive Officer of the
Corporation, and except where by law the signature of the Presi-
dent is required, the Chairman of the Board of Directors shall
possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may
be authorized by the Board of Directors. During the absence or
disability of the President, the Chairman of the Board of
Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors
shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these By-
Laws or by the Board of Directors.
Section 5. President. The President shall, subject to
the control of the Board of Directors and, if there be one, the
Chairman of the Board of Directors, have general supervision of
the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
He shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal
of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when
so authorized by these By-Laws, the Board of Directors or the
President. In the absence or disability of the Chairman of the
Board of Directors, or if there be none, the President shall
preside at all meetings of the stockholders and the Board of
Directors. If there be no Chairman of the Board of Directors,
the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties
and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the
President or in his absence or in the event of his inability or
refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President or the Vice Presidents if there is
more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board
of Directors from time to time may prescribe. If there be no
Chairman of the Board of Directors and no Vice President, the
Board of Directors shall designate the officer of the Corporation
who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the
duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Presi-
dent.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and all meetings of
stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or President, under whose
supervision he shall be. If the Secretary shall be unable or
shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant Secre-
tary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certifi-
cates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be
otherwise provided in these By-Laws, Assistant Secretaries, if
there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secre-
tary.
Section 10. Assistant Treasurers. Assistant Treasur-
ers, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one,
or the Treasurer, and in the absence of the Treasurer or in the
event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Trea-
surer. If required by the Board of Directors, an Assistant
Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as
the Board of Directors may choose shall perform such duties and
have such powers as from time to time may be assigned to them by
the Board of Directors. The Board of Directors may delegate to
any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of
stock in the Corporation shall be entitled to have a certificate
signed, in the name of the Corporation (i) by the Chairman of the
Board of Directors, the President or a Vice President and (ii) by
the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Any or all of the signatures
on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors
may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board
of Directors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certifi-
cate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall
be transferable in the manner prescribed by law and in these By-
Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be cancelled before a
new certificate shall be issued.
Section 5. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty days nor less than ten days before
the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall
be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is re-
quired by law, the Certificate of Incorporation or these By-Laws,
to be given to any director, member of a committee or
stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as
it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States
mail. Written notice may also be given personally or by tele-
gram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these By-
Laws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock.
Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums
as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for
money and notes of the Corporation shall be signed by such
officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corpo-
ration shall be a calendar year.
Section 4. Corporate Seal. The corporate seal shall
have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or
Proceedings other Than Those by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, 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 (other than an action by or in
the right of the Corporation) by reason of the fact that he is or
was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of
the Corporation as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to
Section 3 of this Article VIII, 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 or suit by
or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director or offi-
cer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a
court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person
shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or
books of account of the Corporation or another enterprise, or on
information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the
Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise.
The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met
the applicable standard of conduct set forth in Sections 1 or 2
of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwith-
standing any contrary determination in the specific case under
Section 3 of this Article VIII, and notwithstanding the absence
of any determination thereunder, any director or officer may
apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be. Neither a contrary determination in the specific
case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application
or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct.
Notice of any application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses in-
curred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article
VIII.
Section 7. Nonexclusivity of Indemnification and Ad-
vancement of Expenses. The indemnification and advancement of
expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted
by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase
and maintain insurance on behalf of any person who is or was a
director or officer of the Corporation, or is or was a director
or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability
under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this
Article VIII, references to "the Corporation" shall include, in
addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was
a director or officer of such constituent corporation serving at
the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For
purposes of this Article VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article
VIII.
Section 10. Survival of Indemnification and Advance-
ment of Expenses. The indemnification and advancement of expens-
es provided by, or granted pursuant to, this Article VIII shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwith-
standing anything contained in this Article VIII to the contrary,
except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 hereof), the Corporation
shall not be obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to time
by the Board of Directors, provide rights to indemnification and
to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article VIII to
directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered,
amended or repealed, in whole or in part, or new By-Laws may be
adopted by the stockholders or by the Board of Directors,
provided, however, that notice of such alteration, amendment,
repeal or adoption of new By-Laws be contained in the notice of
such meeting of stockholders or Board of Directors as the case
may be. All such amendments must be approved by either the
holders of a majority of the outstanding capital stock entitled
to vote thereon or by a majority of the entire Board of Directors
then in office; provided, however, that any amendment to Article
III of these By-Laws may not be effected without the majority
vote of the stockholders.
Section 2. Entire Board of Directors. As used in this
Article IX and in these By-Laws generally, the term "entire Board
of Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
MIAMI POWER CORPORATION
_______
ARTICLES OF INCORPORATION
_______
WITH
ALL AMENDMENTS
THROUGH
DECEMBER 21, 1968
<PAGE>
Approved & Filed
Mar. 25, 1930
Otto G. Fifield
Secretary of State
ARTICLES OF INCORPORATION
of
MIAMI POWER CORPORATION
The undersigned, being three or more natural persons of
lawful age, at least a majority of whom are citizens of the
United States, do hereby adopt the following articles of
incorporation, representing beforehand to the Secretary of State
of the State of Indiana and all persons whom it may concern, that
subscription lists for subscriptions to the shares of the capital
stock of the above named corporation for which certificate of
incorporation is hereby applied for, have heretofore been opened
in accordance with law and that subscriptions to the shares of
the corporation have been obtained in an amount not less than One
Thousand ($1,000) Dollars.
Be it further remembered that the following Articles of
Incorporation and all matters heretofore done or hereafter to be
done are in accordance with "An Act concerning domestic and
foreign corporations for profit, providing penalties for the
violation hereof, and repealing all laws or parts of laws in
conflict herewith", approved March 16, 1929, and all acts
amendatory thereof and supplemental thereto.
1. The name of this corporation shall be Miami Power
Corporation.
2. The purpose or purposes for which it is formed are as
follows:
To manufacture, generate, produce, buy, sell, accumulate, store,
transmit, utilize, furnish and distribute electrical energy for
light, heat, power and other purposes; to construct, erect,
purchase, lease or in any manner acquire, to maintain, operate,
manage, and use, and to sell, mortgage, lease, let or in any
manner dispose of or deal with, power plants, power lines,
transmission lines, generating stations, machinery, appliances,
apparatus, equipment and facilities of every kind and character
for the manufacture, generation, production, storage,
accumulation, transmission and use of electrical energy for any
and all purposes; to construct, erect, purchase, lease or in any
manner acquire, to maintain operate, manage and use, and to sell,
mortgage, lease, let or in any manner dispose of or deal with,
hydro-electric power plants, together with everything whatsoever
pertaining thereto, and to purchase or in any manner acquire,
hold, control, use, sell, lease, mortgage or otherwise dispose of
water, water rights, water power privileges and flowage rights
for use in connection with such power plants and the generation,
production, accumulation, transmission and distribution of
electrical energy for any and all purposes.
To carry on a general business of electricians, mechanical
engineers and suppliers of electricity for the purpose of light,
heat and power or otherwise, and to install, erect and maintain
and operate, sell or lease wires, cables and fixtures, both
interior and exterior for the transmission and use of electrical
energy and to manufacture and deal in all apparatus and things
required for or capable of being used in connection with the
generation, distribution, supply, accumulation, consumption and
employment of electricity.
To buy, sell, mortgage, operate and lease pole lines, erect
poles, string wires thereon and on poles of individuals and
corporations, on any and all streets, avenues, highways and roads
of counties, parishes, townships, villages and cities and over
and along all canals and other waterways, and over and across
bridges and through tunnels and over and across all lands
belonging to or controlled by individuals, corporations,
municipalities, counties, parishes, states, the national
government or any governmental subdivision of the national
government (subject, however, to the consent of governmental or
municipal authorities where the same may be required by law), and
to use the same both as through lines and for local delivery for
the transmission and distribution of electrical energy, and to
sell and lease to other individuals or corporations the right to
place electric wires on or attach electric wires to any or all
poles so erected, owned or lease.
To build and construct, purchase and use for any of the purposes
stated above, underground subways and conduits in such streets,
avenues, highways, roads and under such canals, and other
waterways, and through any tunnels and under any public or
private lands, and place electric wires and conductors therein,
and to buy and lease from and sell and let to any individual or
corporation the right to place and use as aforesaid electric
wires or conductors in any such subways, (subject, however, to
the consent of governmental or municipal authorities where the
same may be required by law).
To acquire, sell, mortgage, lease, construct, maintain and
operate water works, and to supply cities, towns, villages,
municipalities, corporations and individuals with water, water
power and water service for domestic, mechanical, manufacturing,
business, public, fire protection and all other purposes, and to
construct, erect, or in any manner acquire, to own, hold and
operate, and to sell, exchange, lease, encumber, or in any manner
dispose of, works, dams, buildings, plants, pumping stations,
reservoirs, machinery, equipment, fixtures, pipes, hydrants,
mains, apparatus, appliances, facilities, rights, privileges,
franchises, ordinances, and all such real and personal property,
as may be necessary, useful or convenient to the business of
procuring and furnishing water, water power and water service; to
manufacture, buy, sell, lease and deal in fixtures and appliances
capable of being employed in connection with the supply and use
of water, and water power; to acquire, carry on, exploit and deal
with and in plants, works, dams, buildings, pumping stations,
lands, property, franchises, equipment, fixtures, pipes, power
houses, good will and business of water companies and persons
engaged in the business of furnishing to municipalities,
corporations and/or individuals, water, water power and water
service; and to carry on any business incidental thereto.
To engage in, manage, operate and conduct any one or more or all
of the businesses commonly classed as public service and public
utilities, particularly including, but not limited to, the
businesses of supplying any one or more or all of the following,
for employment in any manner in which the same may be employed,
to-wit: electric light as well as light in every other form;
power and energy, in the form of electrical current as well as in
every other form; heat from circulating steam, hot water, or
otherwise; natural gas; artificial gas; water; ice; storage and
warehousing facilities; and communication service by telephone
and/or telegraph, or otherwise, both with and without wires.
To acquire by construction, purchase or otherwise, and to
maintain, manage and operate any plant or property for the
manufacture, production, storage, transmission, sale and
distribution of natural or artificial gas, ice, water, heat or
light, or any system, plant or properties for communication
service by telephone, telegraph or otherwise, both with and
without wires, and to acquire by construction, purchase or
otherwise, and/or to maintain, manage and operate any other
property or business.
To construct, manufacture, buy, sell, install, lease or otherwise
dispose of and deal in and trade in works, machinery, appliances,
instruments, fixtures, devices, supplies, materials and articles
of every nature and description used or capable of being used in
the manufacture, production, generation, accumulation,
transmission, distribution, control, measurement or other
application or use in any manner whatsoever of electricity,
natural or artificial gas, water, oil, ice, cold, refrigeration,
heat, and any power now known or which may hereafter be
discovered or invented, or in the conduct of a telegraph and/or
telephone business, both with and without wires, or in the
operation of bus lines and/or street railways and/or interurban
railways.
To manufacture, buy, sell, lease and otherwise acquire and
dispose of, and generally trade and deal, as principal, agent,
factor, on commission or otherwise, in metals of all kinds, iron,
steel, manganese, coal, coke, copper, lumber and other materials,
and any articles consisting or partly consisting thereof, and all
or any products thereof, and in metal, electrical, mechanical and
mercantile devices, specialties, machines, appliances, utilities,
implements, castings, parts, tools, fixtures, hardware,
instruments and apparatus of every kind and nature, and any other
articles of commerce ordinarily made in a thoroughly equipped
machine shop, factory, laboratory or foundry.
To manufacture, acquire, buy, hold, sell and dispose of in any
lawful manner, and generally deal in and with goods, wares,
merchandise, property and commodities of any and every class and
description, and all articles used or useful in connection
therewith, insofar as may be permitted by the laws of Indiana; to
engage in any business, whether manufacturing or otherwise, which
this corporation may deem advantageous or useful in connection
with any or all of the foregoing; and to purchase, acquire,
manufacture, prepare for market, sell and otherwise acquire, hold
and dispose of any article or thing which this corporation may
use in connection with its business, or which may be employed in
utilizing the products sold or the services rendered by this
corporation or by any other corporation, firm, association or
individual in whose securities or obligations this corporation is
interested either as holder, guarantor, or otherwise, or which
will foster the sale or use of such products or service.
To obtain the grant of, condemn by eminent domain proceedings or
otherwise, appropriate, purchase, lease or otherwise acquire any
franchises, easements, consessions, rights, options, patents,
licenses, powers, authorities, privileges, lands, rights of way,
sites, properties, undertakings or business, or any right, option
or contract in relation thereto, and to perform, carry out and
fulfill the terms and conditions thereof, and to carry the same
into effect, and to develop, maintain, lease, sell, transfer,
dispose of and otherwise deal with the same, subject, however, to
the provisions of the laws of the State of Indiana and the
consent of any governmental authority, supreme, municipal or
local that may be required by law.
To organize, incorporate, reorganize, consolidate, merge, finance
and to aid and assist, financially or otherwise, companies,
corporations, joint stock companies, syndicates, partnerships and
associations of all kinds, particularly including, but not
limited to, those engaged in operating public service facilities
and public utilities, and to underwrite, subscribe for and
endorse the bonds, stocks, securities, debentures, notes or
undertakings of any such company, corporation, joint stock
company, syndicate, partnership or association, and to make any
guaranty in connection therewith or otherwise for the payment of
money or for the performance of any obligations or undertaking,
and to do any and all things necessary or convenient to carry any
of such purposes into effect.
To purchase, acquire, take, subscribe for, contract to purchase,
own, hold, sell, assign, transfer, guarantee, mortgage,
hypothecate, pledge, contract to sell or otherwise dispose of
bonds, debentures, shares of stock, securities, scrip, mortgages,
real estate certificates, obligations, contracts and notes issued
or created by other corporations, associations, societies or
companies, whether public, private or municipal, or any corporate
body; to exercise and enjoy to the same full extent as natural
persons could do all rights and privileges accruing to or vesting
in the holder or owners of the said property and chooses in
action aforesaid and to do everything needful, convenient,
desirable, or considered proper, for the protection, improvement,
betterment or enhancement of the value of the said property or
chooses in action or any class thereof and in any manner to aid
or cooperate with such corporations, associations, societies or
companies or with the bondholders or stockholders thereof as
circumstances may require and as may be necessary, convenient or
proper.
To construct, acquire, extend, improve, equip, finance, maintain,
manage, and/or operate, for itself or for others, any property or
properties of any kind and/or to advise, aid and/or assist
therein and for any of said purposes to furnish the services and
advice of engineers, appraisers, supervisors, technical experts,
technical advisers, auditors, executives and other assistants in
any of such matters; and to aid in any manner the issuer of any
stocks, bonds, debentures, evidences of indebtedness,
obligations, warrants or securities of any kind at any time held
by this corporation, and to do any and all lawful acts or things
designated to protect, preserve, enhance or improve the value of
any securities held by this corporation, and to use the funds,
assets and/or credit of this corporation for any of said
purposes.
To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage, or otherwise dispose of letters patent of
the United States or any foreign country, patent rights, licenses
and privileges, inventions, improvements and processes, copy-
rights, trade-marks and trade names, relating to or useful in
connection with any business of this corporation.
To organize or cause to be organized under the laws of the State
of Indiana, or of any other state, territory or insular
possession of the United States or of the District of Columbia or
of any foreign country, a corporation or corporations for the
purpose of accomplishing any or all of the objects for which this
corporation is organized, and to dissolve, wind up, liquidate,
merge or consolidate any such corporation or corporations, or to
cause the same to be dissolved, wound up, liquidated, merged or
consolidated.
To borrow money; to draw, make, accept, endorse, transfer,
assign, execute, and issue bonds, debentures, promissory notes,
and other evidences of indebtedness, and for the purpose of
securing any of its obligations or contracts to convey, transfer,
assign, deliver, mortgage and/or pledge all or any part of the
property or assets at any time owned or held by this corporation,
as may be permitted by law.
To enter into and make, and perform and carry out contracts of
any kind and description made for any lawful purpose, without
limit as to amount, with any person, firm, association or
corporation, either public or private, or with any territory or
government or agency thereof.
To acquire, and to take over as a going concern and thereafter to
carry on the business of any person, firm or corporation engaged
in any business which this corporation is authorized to carry on,
and in connection therewith, to acquire the good-will and all or
any of the assets and to assume or otherwise provide for all or
any of the liabilities of any such business.
To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes or the attainment of any of
the objects or the furtherance of any of the powers herein before
set forth, either alone or in association with other
corporations, firms or individuals, and to do every other act or
acts, thing or things, incident or appurtenant to or growing out
of or connected with the aforesaid business or powers or any part
or parts thereof, provided the same be not inconsistent with the
laws under which this corporation is organized.
To have one or more offices and to conduct all or any part of its
operations and business without restriction or limit as to amount
in the State of Indiana or in any or all other States,
territories, districts, colonies and dependencies of the United
States of America and in any or all foreign countries; and to
acquire (by purchase, exchange, lease, hire or otherwise), own,
hold, develop, operate, lease, sell, assign, transfer, exchange,
mortgage, pledge or otherwise dispose of, or turn to account, and
convey, real and personal property of every kind and nature, and
rights or privileges therein, in the State of Indiana and in any
or all other states, territories, districts, colonies and
dependencies of the United States of America and in any or all
foreign countries, subject to the laws of such states,
territories, districts, colonies, dependencies and countries.
The foregoing clauses shall be construed both as objects and
powers; and it is hereby expressly provided that the foregoing
enumeration of specific powers shall not be held to limit or
restrict in any manner the powers of this corporation.
3. The period during which it is to continue as a corporation
is perpetual years.
4. The post office address of its principal office is 409
North Jefferson Street, Madison (City) Jefferson (County) Indiana
(State).
The name of its resident agent is Joseph M. Cooper.
The post office address of its resident agent is 409 North
Jefferson Street, Madison (City) Jefferson (County) Indiana
(State).
5. The total number of shares into which its authorized
Capital Stock is to be divided is Ten Thousand (10,000)
consisting of shares as follows:
No Shares having a par value.
10,000 Shares having no par value.
(APPROVED BY SHAREHOLDERS MAY 2, 1951)
Said shares having no par value may be issued by the corporation
for such an amount of consideration as may be fixed by the board
of directors thereof.
6. (If the shares are to be divided into classes or
kinds the designations of the different classes, the number and
par value, if any, of the shares of each class, and either (a) a
statement of the relative rights, preferences, limitations and
restrictions of each class, or (b) a provision expressly vesting
authority in the board of directors, subject to such restrictions
as may be provided, to determine the relative rights,
preferences, limitations and restrictions (other than voting
rights) of each class by resolution or resolutions adopted prior
to the issuance of any of the shares of such class; and, if the
shares of any class are to be issuable in series, descriptions of
the several series, and either (a) a statement of the relative
rights, preferences, limitations and restrictions of each series,
or (b) a provision expressly vesting authority in the board of
directors, subject to such restrictions as may be provided, to
determine the relative rights, preferences, limitations and
restrictions (other than voting rights) of each series by
resolution or resolutions adopted prior to the issuance of any of
the shares of such series.)
Indicate here: None.
7. (If the shares are to be divided into classes or kinds, a
statement of the voting rights and powers, if any, of the shares
of each class, and of each series if the shares of any class are
to be issuable in series, including the extent, if any, to which
the shares of each such class and series shall be entitled to
vote on questions of merger, consolidation and the sale of all or
of substantially all of the assets of the corporation).
Indicate here: None.
8. The amount of paid in capital with which this corporation
will begin business is $1,000.00.
9. The Board of Directors shall consist of no more than nine
(9) persons, the exact number of Directors to be specified from
time to time by the by-laws, at not less than three (3) nor more
than nine (9). If and whenever the by-laws do not contain a
provision specifying the number of Directors the number shall be
three (3).
Name Street City County
State
H.C. Blackwell 4th & Main Sts., Cincinnati, Hamilton,
Ohio
Polk Laffoon 4th & Main Sts., Cincinnati, Hamilton,
Ohio
Geo. R. Brenner 4th & Main Sts., Cincinnati, Hamilton,
Ohio
E. S. Fields 4th & Main Sts., Cincinnati, Hamilton,
Ohio
L. K. Langdon 4th & Main Sts., Cincinnati, Hamilton,
Ohio
11. The names and post office address of the incorporators
are as follows:
Name Street City County
State
Edward J. Boleman #1510 Merchants Indianapolis, Marion,
Indiana
Bank Bldg.
Eileen M. Scanlon #1510 Merchants Indianapolis, Marion,
Indiana
Bank Bldg.
Herman L. McCray #1510 Merchants Indianapolis, Marion,
Indiana
Bank Bldg.
12. (Any other provisions, consistent with the laws of this
state, for the regulation of the business and conduct of the
affairs of the corporation, and creating, defining, limiting or
regulating the powers of the corporation, of the directors or of
the shareholders or any class or classes of shareholders.)
Indicate here:
(1) All meetings of the shareholders and board of directors may
be held outside the State of Indiana at such place or places as
the by-laws shall provide.
(2) The corporation reserves the rights to amend, alter, change
or repeal any provision contained in these Articles of
Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred upon shareholders, directors
and officers herein are granted subject to this reservation.
Edward J. Boleman 1510 Merchants Bank Bldg., Indianapolis
Eileen M. Scanlon 1510 Merchants Bank Bldg., Indianapolis
Herman L. McCray 1510 Merchants Bank Bldg., Indianapolis.
STATE OF INDIANA
SS:
COUNTY OF MARION
Before me, Beryl Smith, a Notary Public in and for said County
and State, personally appeared
Edward J. Boleman,
Eileen M. Scanlon,
and Herman L. McCray,
and severally acknowledged the execution of the foregoing
articles of incorporation.
(Notarial Seal) Witness my hand and notarial seal
this 25th day of March 1930.
/s/ Beryl Smith
Beryl Smith,
Notary Public.
My commission expires May 23, 1931.
<PAGE>
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
Otto G. Fifield, Secretary of State
To Whom These Presents Come, Greeting:
Whereas, there has been presented to me at this office Articles
of Incorporation in triplicate for Miami Power Corporation
showing capital stock as follows:
1,000 shares having no par value.
Said Articles of Incorporation having been prepared and signed in
accordance with "An Act concerning domestic and foreign
corporations for profit, providing penalties for the violation
hereof, and repealing all laws or parts of laws in conflict
herewith," approved March 16, 1929, and Acts supplemental
thereto.
Whereas, upon due examination, I find that they conform to law:
Now, therefore, I hereby certify that I have this day endorsed my
approval upon the triplicate copies of Articles so presented,
and, having received the fees required by law, in the sum of
$11.50, having filed one copy of the Articles in this office and
returned two copies bearing the endorsement of my approval to the
incorporators of their representatives.
In Witness Whereof, I have hereunto set my hand and
(State Seal) affixed the seal of the State
of Indianapolis, this 25th day
of March, 1930.
Otto G. Fifield, Secretary of State.
Charles E. Dare, Deputy.
BY-LAWS
OF
MIAMI POWER CORPORATION
ARTICLE I
Offices
Section 1. Offices. The registered office of the
Corporation shall be in the City of Lawrenceburg, County of
Dearborn, State of Indiana. The Corporation may establish an
office in the City of Cincinnati, State of Ohio, and offices at
such other places as the Board of Directors may from time to time
or the business of the Corporation may require.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the State of
Indiana, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of
the reports to be laid before the meeting and the transaction of
such other business as may be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate one-fourth of all shares outstanding and
entitled to vote thereat, upon notice in writing, stating the
time, place and purpose of the meeting. Business transacted at
all special meetings shall be confined to the objects stated in
the call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days before the date of the meeting.
Section 5. Waiver of Notice. Notice of any shareholders'
meeting may be waived in writing by any shareholder if the waiver
sets forth, in reasonable detail, the purpose for which the
meeting is called, and time and place thereof. Attendance at any
meeting, in person or by proxy, shall constitute a waiver of
notice of such meeting.
Section 6. Quorum. At any meeting of the shareholders, 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 constitute a quorum for all purposes, unless
otherwise specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or
represented at any meeting of the shareholders, the shareholders
entitled to vote, present in person or by proxy, shall have power
to adjourn the meeting from time to time without further notice,
other than by announcement at the meeting, until the requisite
amount of voting stock shall be present. At any such adjourned
meeting, at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as
originally called.
Section 7. Voting. At any meeting of the shareholders,
every shareholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless said instrument
provides for a longer period.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his name on the books of
the Corporation, at the date fixed for determination of persons
entitled to vote at the meeting or, if no date has been fixed,
then at the date of the meeting.
A complete list of shareholders entitled to vote at the
shareholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any shareholder, and such list shall
be prima facie evidence of the ownership of shares and of the
right of shareholders to vote, when certified by the Secretary or
by the agent of the Corporation having charge of the transfer of
shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of Directors (who need not be shareholders)
consisting of not less than four (4) persons nor more than nine
(9), who shall be elected annually by the shareholders at the
annual meeting. Each director shall hold office until his
successor shall have been elected and qualified. Any director
may resign at any time. Vacancies occurring in the Board of
Directors shall be filled by a majority vote of the remaining
members of the board. A director thus elected to fill any
vacancy shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualifies.
Any director may be removed at any time by the affirmative vote
of a majority of the stock then issued and entitled to vote at a
special meeting of shareholders called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Indiana) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3)
days' written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Indiana), and upon such notice, as the Board
of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or may
be called by the written request of two (2) members of the Board
of Directors.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1,
of these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a
majority of the directors present at any such meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of
the Corporation or of The Cincinnati Gas & Electric Company or
any of its affiliates) shall be entitled to receive for each
meeting of the Board of Directors which he shall attend, such
fees as the Board of Directors shall from time to time determine.
The same payment may also be made to any one other than a
director officially called to attend any such meeting.
Section 8. Executive Committee. The Board of Directors
may, by resolution passed by a majority of the whole board,
designate annually three (3) of their number to constitute an
Executive Committee, who to the extent provided in the
resolution, shall exercise in the intervals between the meetings
of the Board of Directors the powers of the board in the
management of the business and affairs of the Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to
the Board of Directors at its meeting next succeeding such
action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may
also appoint such other standing or temporary committees from
time to time as they may see fit, delegating to such committees
all or any part of their own powers. The members of such
committees shall be entitled to receive such fees as the board
may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may
consist of a Vice Chairman, a Chief Operating Officer, one or more
Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, or one or more Assistant Comptrollers, all
of whom shall be elected by the Board of Directors, and shall hold
office for one year and until their successors are chosen and
qualified.
Any two or more offices may be held by the same person, except
that the duties of the President and Secretary shall not be
performed by the same person. All vacancies occurring among any of
the above offices shall be filled by the Board of Directors. Any
officer may be removed with or without cause by the affirmative
vote of a majority of the number of directors at any meeting of the
Board of Directors.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or inability to act of the
Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform such
other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors. The Chairman of the Board
shall direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such other
officers as may be requested from time to time by such officers.
The Chairman shall be a member of the Executive Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in the
absence or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice Chairman shall perform such other
duties as may from time to time be assigned to him or her by the
Board of Directors. The Vice Chairman shall be a member of the
Executive Committee.
Section 5. The Chief Executive Officer. The Chief Executive
Officer shall be a director and shall preside at all meetings of
the shareholders, and, in the absence or inability to act of the
Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall submit a
report of the operations of the Corporation for the fiscal year to
the shareholders at their annual meeting and from time to time
shall report to the Board of Directors all matters within his or
her knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be the
chairman of the Executive Committee and ex officio a member of all
standing committees.
Section 6. The Chief Operating Officer. The Chief Operating
Officer of the Corporation, if there be one, shall have general and
active management and direction of the affairs of the Corporation,
shall have supervision of all departments and of all officers of
the Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried into
effect, and shall have the general powers and duties of supervision
and management usually vested in the office of a Chief Operating
Officer of a corporation. Unless otherwise provided, all corporate
officers and functions shall report directly to the Chief Operating
Officer, if there be one, or, if not, to the Chief Executive
Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
The Secretary shall keep in safe custody the seal of the
Corporation, and, whenever authorized by the Board of Directors or
the Executive Committee, affix the seal to any instrument requiring
the same.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board of
Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of all collections, receipts and disbursements in books
belonging to the Corporation, shall deposit all moneys and other
valuables in the name and to the credit of the Corporation, in such
depositories as may be directed by the Board of Directors, shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, or President, taking proper vouchers therefor, and shall
render to the Chief Executive Officer, Chief Operating Officer, or
President, and directors at all regular meetings of the board, or
whenever they may require it, and to the annual meeting of the
shareholders, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful performance
of the duties of his or her office and the restoration to the
Corporation in the case of his or her death, resignation or removal
from office of all books, papers, vouchers, money and other
property of whatever kind in his or her possession belonging to the
Corporation.
(b) Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to time
be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation pertaining
to moneys, properties, materials and supplies. He or she shall
have executive direction over the bookkeeping and accounting
departments and shall have general supervision over the records in
all other departments pertaining to moneys, properties, materials
and supplies. He or she shall have such other powers and duties as
are incident to the office of Comptroller of a corporation and
shall be subject at all times to the direction and control of the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, and a Vice President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the Assistant
Comptroller designated by the Comptroller, shall perform the duties
of the Comptroller and when so acting shall have all the powers of
and be subject to all the restrictions of the Comptroller. The
Assistant Comptrollers shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of such transaction.
B. "Director" means an individual who is or was a director
of the Corporation or an individual who while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
whether for profit or not. Director includes the estate or
personal representative of a director.
C. "Expenses" include counsel fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a director, the office of
director in the Corporation; and
(2) When used with respect to an individual other than a
director, as contemplated in Section 3 of this Article, the
office in the Corporation held by the officer or the employment
or agency relationship undertaken by the employee or agent on
behalf of the Corporation. "Official capacity" does not include
service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal.
Section 2. Basis.
A. The Corporation shall indemnify an individual made a
party to a proceeding because the individual is or was a director
against liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
(2) The individual reasonably believed:
(a) In the case of conduct in the
individual's official capacity with the Corporation, that the
individual's conduct was in its best interests; and
(b) In all other cases, that the
individual's conduct was at least not opposed to its best
interests; and
(3) In the case of any criminal proceeding, the
individual either:
(a) Had reasonable cause to believe the
individual's conduct was lawful; or
(b) Had no reasonable cause to believe the
individual's conduct was unlawful.
B. A director's conduct with respect to any employee
benefit plan for a purpose the director reasonably believed to be
in the interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirement of subsection
(A)(2)(b).
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct described in this Section.
Section 3. Authorized. The Corporation shall indemnify a
director who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which the director was a
party because the director is or was a director of the
Corporation against reasonable expenses incurred by the director
in connection with the proceeding.
Section 4. Before Final Disposition of Proceedings.
A. The Corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the Corporation a written
affirmation of the director's good faith belief that the director
has met the standard of conduct described in Section 2 of this
Article;
(2) The director furnishes the Corporation a written
undertaking, executed personally or on the director's behalf, to
repay the advance if it is ultimately determined that the
director did not meet the standard of conduct; and
(3) A determination is made that the facts then known
to those making the determination would not preclude
indemnification under this Article.
B. The undertaking required by subsection A(2) must be an
unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial
ability to make repayment.
C. Determinations and authorizations of payments under
this Section shall be made in the manner specified in Section 6
of this Article.
Section 5. Judicial Order. A director of the Corporation
who is a party to a proceeding may apply for indemnification to
the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court
after giving any notice the court considers necessary may order
indemnification if it determines:
(1) The director is entitled to mandatory indemnification
under Section 3 of this Article, in which case the court shall
also order the Corporation to pay the director's reasonable
expenses incurred to obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not the director met the standard of conduct set forth
in Section 2 of this Article.
Section 6. Procedure for Determining Amount.
A. The Corporation may not indemnify a director under
Section 2 of this Article unless authorized in the specific case
after a determination has been made that indemnification of the
director is permissible in the circumstances because the director
has met the standard of conduct set forth in Section 2 of this
Article.
B. The determination shall be made by any one of the
following procedures:
(1) By the Board of Directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding; or
(2) If a quorum cannot be obtained under subdivision
(1), by majority vote of a committee duly designated by the Board
of Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at
the time parties to the proceeding; or
(3) By special legal counsel:
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subdivision (1) or (2); or
9
(b) If a quorum of the Board of Directors cannot be
obtained under subdivision (1) and a committee cannot be
designated under subdivision (2), selected by majority vote of
the full Board of Directors (in which selection directors who are
parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection B(3) to select counsel.
Section 7. Officers, Employees, or Agents.
A. An officer of the Corporation, whether or not a
director, is entitled to mandatory indemnification under Section
3 of this Article, and is entitled to apply for court-ordered
indemnification under Section 5 of this Article, in each case to
the same extent as the director.
B. The Corporation shall indemnify and advance expenses
under this Article to an officer, employee, or agent of the
Corporation, whether or not a director, to the same extent as to
a director.
C. The Corporation may also indemnify and advance expenses
to an officer, employee, or agent, whether or not a director, to
the extent, consistent with public policy, that may be provided
by the Articles of Incorporation, general or specific action of
its Board of Directors, or contract.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
director, officer, employee, or agent of the Corporation, or who,
while a director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by the individual
in that capacity or arising from the individual's status as a
director, officer, employee, or agent, whether or not the
Corporation would have power to indemnify the individual against
the same liability under Section 2 or 3 of this Article.
Section 9. Remedy Not Exclusive of Other Rights.
A. The indemnification and advance for expenses provided
for or authorized by this Article does not exclude any other
rights to indemnification and advance for expenses that a person
may have under:
(1) The Corporation's Articles of Incorporation;
(2) A resolution of the Board of Directors or of the
shareholders; or
(3) Any other authorization, whenever adopted, after
notice, by a majority vote of all the voting shares then issued
and outstanding.
B. If the Articles of Incorporation, resolution of the
Board of Directors or of the shareholders, or other duly adopted
authorization of indemnification or advance for expenses limit
indemnification or advance for expenses, indemnification and
advance for expenses are valid only to the extent consistent with
the Articles, resolution of the Board of Directors or of the
shareholders, or other duly adopted authorization of
indemnification or advance for expenses.
C. This Article does not limit a Corporation's power to pay
or reimburse expenses incurred by a director, officer, employee,
or agent in connection with the person's appearance as a witness
in a proceeding at a time when the person has not been made a
named defendant or respondent to the proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1)
either the Chairman, Chief Executive Officer, President, or
a Vice President, and (2) any one of the following officers:
Secretary or Assistant Secretary, Treasurer or Assistant
Treasurer. All certificates shall be consecutively numbered in
each class of shares. The name and address of the person owning
the shares represented thereby, with the number of shares and the
date of issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a
new certificate is issued the old certificates shall be
surrendered for cancellation.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or
printed.
In case any officer designated for the purpose, who has
signed or whose facsimile signature has been used on any such
certificate, shall, from any cause, cease to be such officer
before the certificate has been delivered by the Corporation, the
certificate may nevertheless be adopted by the Corporation and be
issued and delivered as though the person had not ceased to be
such officer.
Section 4. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceed-
ing thirty (30) days preceding the date of any meeting of share-
holders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote
thereat or to receive such dividends or rights as the case may
be; or the Board of Directors may close the books of the
Corporation against transfer of shares during the whole or any
part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the
Board of Directors (or the Executive Committee, if there be one
and the authority to declare dividends is delegated to the
Executive Committee by the Board of Directors) and paid in cash,
shares, or other property
out of the annual net income to the Corporation or out of its net
assets in excess of its capital, computed in accordance with the
state statute and subject to the conditions and limitations
imposed by the Articles of Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other
class of shares.
Before payment of any dividends or making distribution of
any profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of
Directors (or Executive Committee, if there be one and the
authority to declare dividends or make distributions is delegated
to the Executive Committee) from time to time in its absolute
discretion thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors
or unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer
or Assistant Treasurer. The Board of Directors may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute checks, drafts and
orders for the payment of money in its behalf and, in the
discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice
required to be given by these By-Laws to a director or officer
may be given in writing, personally served or through the United
States Mail, or by telephone, telegram, cablegram or radiogram,
and such notice shall be deemed to be given at the time when the
same shall be thus transmitted. Any notice required to be given
by these By-Laws may be waived by the person entitled to such
notice.
ARTICLE XI
Corporate Seal
Section 1. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Indiana."
ARTICLE XII
Amendment
Section 1. Amendment. The Board of Directors, by the
affirmative vote of a majority thereof, may at any regular or
upon notice at any special meeting, alter or amend these By-Laws,
except as to such matters as are required to be regulated by the
Articles of Incorporation of the Corporation.
ARTICLES OF INCORPORATION
OF
THE WEST HARRISON GAS AND ELECTRIC COMPANY
(Formerly: West Harrison Electric and Water Company, Inc.)
WITH
ALL AMENDMENTS
THROUGH
DECEMBER 21, 1966
<PAGE>
ARTICLES OF INCORPORATION
THE WEST HARRISON GAS AND ELECTRIC COMPANY
Incorporated August 11, 1942.
Filed with Secretary of State of Indiana August 19, 1942.
Recorded January 19, 1943 - Marion County, Indiana.
PURPOSE
Formed for purpose of acquiring, owning and operating or selling
and disposing of an electric light and power plant and water
works in West Harrison, Indiana, etc.
PERIOD OF INCORPORATION
50 Years.
NO. OF SHARES AUTHORIZED
2,000 shares of par value of $10.00
<PAGE>
ARTICLES OF INCORPORATION
OF
THE WEST HARRISON GAS AND ELECTRIC COMPANY
The undersigned, being three or more natural persons of lawful
age, at least a majority of whom are citizens of the United
States, do hereby adopt the following articles of incorporation,
representing beforehand to the Secretary of State of the State of
Indiana and all persons whom it may concern, that subscription
lists for subscriptions to the shares of the capital stock of the
above named corporation for which certificates of incorporation
is hereby applied for, have heretofore been opened in accordance
with law and that subscriptions to the shares of the corporation
have been obtained in an amount not less than One Thousand
($1,000) Dollars.
Be it further remembered that the following Articles of
Incorporation and all matters heretofore done or hereafter to be
done are in accordance with "An Act concerning domestic and
foreign corporations for profit, providing penalties for the
violation hereof, and repealing all laws or parts of laws in
conflict herewith," approved March 16, 1929, and all acts
amendatory thereof and supplemental thereto.
1. The name of the corporation shall be
West Harrison Gas and Electric Company.
2. The purpose or purposes for which it is formed are as
follows:
Said Corporation is formed for the purpose of acquiring, owning
and operating or selling and disposing of, a gas, electric light
and power plant and water works in the State of Indiana,
including all franchises, rights, contracts and property, real,
personal and mixed, and assets of every kind and description
pertaining to the same, and to engage in the business of
producing, manufacturing, purchasing, selling and distributing
gas, electric light and power and water in the State of Indiana,
for heating, lighting, domestic, commercial, industrial and power
uses and purposes, and other business incidental thereto, and to
acquire and hold, any and all real estate necessary or convenient
for said purposes, and to dispose of the same, and to acquire,
manage and conduct said business in any and all its departments,
and to do any and all other proper and necessary things in and
about the premises, for carrying out the purposes of said Company
as set forth above, and to borrow money whenever necessary or
required, and to secure the same in any lawful manner deemed
proper and necessary by said Company in its interests.
3. The duration of the period during which it is to continue
as a corporation is perpetual.
4. The post office address of its principal office is 1511
Merchants Bank Bldg., Indianapolis, Marion County, Indiana.
The name of its resident agent is Jacob S. White
The post office address of its resident agent is 1511 Merchants
Bank Building, Indianapolis, Marion County, Indiana.
5. The total number of shares into which its authorized
capital stock is to be divided is Ten Thousand consisting of
shares as follows:
10,000 shares having a par value of $10.00
6. (If the shares are to be divided into classes or kinds the
designations of the different classes, the number and par value,
if any, of the shares of each class, and either (a) a statement
of the relative rights, preferences, limitations and restrictions
of each class, or (b) a provision expressly vesting authority in
the board of directors, subject to such restrictions as may be
provided, to determine the relative rights, preferences,
limitations and restrictions (other than voting rights) of each
class by resolution or resolutions adopted prior to the issuance
of any of the shares of such class; and, if the shares of any
class are to be issuable in series, descriptions of the several
series, and either (a) a statement of the relative rights,
preferences, limitations and restrictions of each series, or (b)
a provision expressly vesting authority in the board of
directors, subject to such restrictions as may be provided, to
determine the relative rights, preferences, limitations and
restrictions (other than voting rights) of each series by
resolution or resolutions adopted prior to the issuance of any of
the shares of such series.)
Indicate here: None
7. (If the shares are to be divided into classes or kinds, a
statement of the voting rights and powers, if any, of the shares
of each class, and of each series if the shares of any class are
to be issuable in series, including the extent, if any, to which
the shares of each such class and series shall be entitled to
vote on question of merger, consolidation and the sale of all or
of substantially all of the assets of the corporation.)
Indicate here: None
8. The amount of paid in capital with which this corporation
will begin business is $500.00
(This must not be less than $500.00)
9. The Board of Directors shall consist of no more than nine
(9) persons, the exact number of Directors to be specified from
time to time by the by-laws at not less than three(3) nor more
than nine (9). If and whenever the by-laws do not contain a
provision specifying the number of Directors the number shall be
three (3).
10. The names and addresses of the first board of directors
are as follows:
H.C. Blackwell 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
G. F. Brenner 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
C. G. Eichelberger 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
Polk Laffoon 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
A. C. Moorhaus 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
11. The names and post office address of the incorporators
are as follows:
Allen C. Strunk 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
Esther McCormick 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
Floyd C. Williams 4th & Main Sts., Cincinnati, Hamilton
Co., Ohio.
12. (Any other provisions, consistent with the laws of this
state, for the regulation of the business and conduct of the
affairs of the corporation, and creating, defining, limiting or
regulating the powers of the corporation, of the directors or of
the shareholders or any class or classes of shareholders.
Indicate here: None
INCORPORATORS SIGN HERE
/s/ Allen C. Strunk
Allen C. Strunk
/s/ Esther McCormick
Esther McCormick
/s/ Floyd C. Williams
Floyd C. Williams
<PAGE>
STATE OF OHIO)
COUNTY OF HAMILTON) SS
Before me Stella Hufnagel, a Notary Public in and for said County
and State, personally appeared
/s/ Allen C. Strunk
Allen C. Strunk
/s/ Esther McCormick
Esther McCormick
/s/ Floyd C. Williams
Floyd C. Williams
(Seal)
and severally acknowledged the execution of the foregoing
articles of incorporation.
WITNESS my hand and notarial seal this 11th day of August,
1942
/s/ Stella Hufnagel
Stella Hufnagel
Notary Public.
Recorded at 8:35 AM
Marion County
Jan. 19, 1943
My Commission expires Mar. 11, 1945
(Articles of incorporation must be prepared and signed in
triplicate in the form prescribed by the Secretary of State by
all of the incorporators and acknowledged by at least three of
them before a Notary Public, and shall be presented in triplicate
to the Secretary of State at his office accompanied by the fees
prescribed by law.)
Received for Record
Jan. 19, 1943
and recorded in Record 338,Page 519
Recorded Marion County.
Approved and filed Aug. 19, 1942
/s/ Maurice G. Robinson
Maurice G. Robinson
Secretary of State of Indiana
1641
BY-LAWS
OF
THE WEST HARRISON GAS AND ELECTRIC COMPANY
ARTICLE I
Offices
Section 1. Offices. The registered office of the
Corporation shall be in the City of Lawrenceburg, County of
Dearborn, State of Indiana. The Corporation may establish an
office in the City of Cincinnati, State of Ohio, and offices at
such other places as the Board of Directors may from time to time
or the business of the Corporation may require.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the State of
Indiana, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of
the reports to be laid before the meeting and the transaction of
such other business as may be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate one-fourth of all the shares outstanding
and entitled to vote thereat, upon notice in writing, stating the
time, place and purpose of the meeting. Business transacted at
all special meetings shall be confined to the objects stated in
the call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days before the date of the meeting.
Section 5. Waiver of Notice. Notice of any shareholders'
meeting may be waived in writing by any shareholder if the waiver
sets forth, in reasonable detail, the purpose for which
the meeting is called, and time and place thereof. Attendance at
any meeting, in person or by proxy, shall constitute a waiver of
notice of such meeting.
Section 6. Quorum. At any meeting of the shareholders, 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 constitute a quorum for all purposes, unless
otherwise specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or
represented at any meeting of the shareholders, the shareholders
entitled to vote, present in person or by proxy, shall have power
to adjourn the meeting from time to time without further notice,
other than by announcement at the meeting, until the requisite
amount of voting stock shall be present. At any such adjourned
meeting, at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as
originally called.
Section 7. Voting. At any meeting of the shareholders,
every shareholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless said instrument
provides for a longer period.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his name on the books of
the Corporation, at the date fixed for determination of persons
entitled to vote at the meeting or, if no date has been fixed,
then at the date of the meeting.
A complete list of shareholders entitled to vote at the
shareholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any shareholder, and such list shall
be prima facie evidence of the ownership of shares and of the
right of shareholders to vote, when certified by the Secretary or
by the Agent of the Corporation having charge of the transfer of
shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of Directors (who need not be shareholders)
consisting of not less than four (4) persons nor more than nine
(9), who shall be elected annually by the shareholders at the
annual meeting. Each director shall hold office until his
successor shall have been elected and qualified. Any director
may resign at any time.
Vacancies occurring in the Board of Directors shall be
filled by a majority vote of the remaining members of the board.
A director thus elected to fill any vacancy shall hold office for
the unexpired term of his predecessor and until his successor is
elected and qualifies. Any director may be removed at any time
by the affirmative vote of a majority of the stock then issued
and entitled to vote at a special meeting of shareholders called
for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Indiana), for
the purpose of organization, the election of officers and the
transaction of other business. If a majority of the directors be
then present no prior notice of such meeting shall be required to
be given. The place and time of such first meeting may, however,
be fixed by written consent of all the directors, or by three (3)
days written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Indiana), and upon such notice, as the Board
of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or may
be called by the written request of two (2) members of the Board
of Directors.
Section 5. Notice of Meetings. Notice of meeting shall be
given to each director in accordance with Article X, Section 1,
of these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a
majority of the directors present at any such meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of
the Corporation or of The Cincinnati Gas & Electric Company or
any of its affiliates) shall be entitled to receive for each
meeting of the Board of Directors which he shall attend, such fee
as the Board of Directors shall from time to time determine. The
same payment may also be made to any one other than a director
officially called to attend any such meeting.
Section 8. Executive Committee. The Board of Directors
may, by resolution passed by a majority of the whole board,
designate annually three (3) of their number to constitute an
Executive Committee, who to the extent provided in the
resolution, shall exercise in the intervals between the meetings
of the Board of Directors the powers of the board in the
management of the business and affairs of the Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to
the Board of Directors at its meeting next succeeding such
action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may
also appoint such other standing or temporary committees from
time to time as they may see fit, delegating to such committees
all or any part of their own powers. The members of such
committees shall be entitled to receive such fees as the board
may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may
consist of a Vice Chairman, a Chief Operating Officer, one or
more Vice Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, or one or more Assistant Comptrollers,
all of whom shall be elected by the Board of Directors, and shall
hold office for one year and until their successors are chosen
and qualified.
Any two or more offices may be held by the same person,
except that the duties of the President and Secretary shall not
be performed by the same person. All vacancies occurring among
any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause by
the affirmative vote of a majority of the number of directors at
any meeting of the Board of Directors.
Section 2. Subordinate Officers. The Board of Directors
may appoint such other officers and agents with such powers and
duties as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of
the Board of Directors and, in the absence or inability to act of
the Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform
such other duties as may from time to time be assigned to the
Chairman of the Board
by the Board of Directors. The Chairman of the Board shall
direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such
other officers as may be requested from time to time by such
officers. The Chairman shall be a member of the Executive
Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in
the absence or inability to act of the Chief Executive Officer
and the Chairman of the Board. The Vice Chairman shall perform
such other duties as may from time to time be assigned to him or
her by the Board of Directors. The Vice Chairman shall be a
member of the Executive Committee.
Section 5. The Chief Executive Officer. The Chief
Executive Officer shall be a director and shall preside at all
meetings of the shareholders, and, in the absence or inability to
act of the Chairman of the Board and the Vice Chairman, at all
meetings of the Board of Directors. The Chief Executive Officer
shall submit a report of the operations of the Corporation for
the fiscal year to the shareholders at their annual meeting and
from time to time shall report to the Board of Directors all
matters within his or her knowledge which the interests of the
Corporation may require be brought to their notice. The Chief
Executive Officer shall be the chairman of the Executive
Committee and ex officio a member of all standing committees.
Section 6. The Chief Operating Officer. The Chief
Operating Officer of the Corporation, if there be one, shall have
general and active management and direction of the affairs of the
Corporation, shall have supervision of all departments and of all
officers of the Corporation, shall see that the orders and
resolutions of the Board of Directors and of the Executive
Committee are carried into effect, and shall have the general
powers and duties of supervision and management usually vested in
the office of a Chief Operating Officer of a corporation. Unless
otherwise provided, all corporate officers and functions shall
report directly to the Chief Operating Officer, if there be one,
or, if not, to the Chief Executive Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend
all meetings of the Board of Directors, of the Executive
Committee and of the shareholders and act as clerk thereof and
record all votes and the minutes of all proceedings in a book to
be kept for that purpose, and shall perform like duties for the
standing committees when required.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board
of Directors and shall perform such other duties as may be
prescribed from time to time by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and
accurate accounts of all collections, receipts and disbursements
in books belonging to the Corporation, shall deposit all moneys
and other valuables in the name and to the credit of the
Corporation, in such depositories as may be directed by the Board
of Directors, shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, Chief Executive Officer,
Chief Operating Officer, or President, taking proper vouchers
therefor, and shall render to the Chief Executive Officer, Chief
Operating Officer, or President, and directors at all regular
meetings of the board, or whenever they may require it, and to
the annual meeting of the shareholders, an account of all his or
her transactions as Treasurer and of the financial condition of
the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and the
restoration to the Corporation in the case of his or her death,
resignation or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his or her
possession belonging to the Corporation.
(b). Assistant Treasurers. At the request of the
Treasurer, or in his or her absence or inability to act, the
Assistant Treasurer or, if there be more than one, the Assistant
Treasurer designated by the Treasurer, shall perform the duties
of the Treasurer and when so acting shall have all the powers of
and be subject to all the restrictions of the Treasurer. The
Assistant
Treasurers shall perform such other duties as may from time
to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation
pertaining to moneys, properties, materials and supplies. He or
she shall have executive direction over the bookkeeping and
accounting departments and shall have general supervision over
the records in all other departments pertaining to moneys,
properties, materials and supplies. He or she shall have such
other powers and duties as are incident to the office of
Comptroller of a corporation and shall be subject at all times to
the direction and control of the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, and a Vice
President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the
Assistant Comptroller designated by the Comptroller, shall
perform the duties of the Comptroller and when so acting shall
have all the powers of and be subject to all the restrictions of
the Comptroller. The Assistant Comptrollers shall perform such
other duties as may from time to time be assigned to them by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, or Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of such transaction.
B. "Director" means an individual who is or was a director
of the Corporation or an individual who while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
whether for profit or not. Director includes the estate or
personal representative of a director.
C. "Expenses" include counsel fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a director, the office of
director in the Corporation; and
(2) When used with respect to an individual other than a
director, as contemplated in Section 3 of this Article, the
office in the Corporation held by the officer or the employment
or agency relationship undertaken by the employee or agent on
behalf of the Corporation. "Official capacity" does not include
service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal.
Section 2. Basis.
A. The Corporation shall indemnify an individual made a
party to a proceeding because the individual is or was a director
against liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
(2) The individual reasonably believed:
(a) In the case of conduct in the individual's
official capacity with the Corporation, that the individual's
conduct was in its best interests; and
(b) In all other cases, that the individual's
conduct was at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, the
individual either:
(a) Had reasonable cause to believe the individual's
conduct was lawful; or
(b) Had no reasonable cause to believe the
individual's conduct was unlawful.
B. A director's conduct with respect to any employee
benefit plan for a purpose the director reasonably believed to be
in the interests of the participants in and beneficiaries of the
plan is conduct that satisfies the requirement of subsection
(A)(2)(b).
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct described in this Section.
Section 3. Authorized. The Corporation shall indemnify a
director who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which the director was a
party because the director is or was a director of the
Corporation against reasonable expenses incurred by the director
in connection with the proceeding.
Section 4. Before Final Disposition of Proceedings.
A. The Corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the Corporation a written
affirmation of the director's good faith belief that the director
has met the standard of conduct described in Section 2 of this
Article;
(2) The director furnishes the Corporation a written
undertaking, executed personally or on the director's behalf, to
repay the advance if it is ultimately determined that the
director did not meet the standard of conduct; and
(3) A determination is made that the facts then known
to those making the determination would not preclude
indemnification under this Article.
B. The undertaking required by subsection A(2) must be an
unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial
ability to make repayment.
C. Determinations and authorizations of payments under this
Section shall be made in the manner specified in Section 6 of
this Article.
Section 5. Judicial Order. A director of the Corporation
who is a party to a proceeding may apply for indemnification to
the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court
after giving any notice the court considers necessary may order
indemnification if it determines:
(1) The director is entitled to mandatory indemnification
under Section 3 of this Article, in which case the court shall
also order the Corporation to pay the director's reasonable
expenses incurred to obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not the director met the standard of conduct set forth
in Section 2 of this Article.
Section 6. Procedure for Determining Amount.
A. The Corporation may not indemnify a director under
Section 2 of this Article unless authorized in the specific case
after a determination has been made that indemnification of the
director is permissible in the circumstances because the director
has met the standard of conduct set forth in Section 2 of this
Article.
B. The determination shall be made by any one of the
following procedures:
(1) By the Board of Directors by majority vote of a
quorum consisting of directors not at the time parties to the
proceeding; or
(2) If a quorum cannot be obtained under subdivision
(1), by majority vote of a committee duly designated by the Board
of Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at
the time parties to the proceeding; or
(3) By special legal counsel:
(a) Selected by the Board of Directors or its committee in
the manner prescribed in subdivision (1) or (2); or
(b) If a quorum of the Board of Directors cannot be obtained
under subdivision (1) and a committee cannot be designated under
subdivision (2), selected by majority vote of the full Board of
Directors (in which selection directors who are parties may
participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection B(3) to select counsel.
Section 7. Officers, Employees, or Agents.
A. An officer of the Corporation, whether or not a
director, is entitled to mandatory indemnification under Section
3 of this Article, and is entitled to apply for court-ordered
indemnification under Section 5 of this Article, in each case to
the same extent as the director.
B. The Corporation shall indemnify and advance expenses
under this Article to an officer, employee, or agent of the
Corporation, whether or not a director, to the same extent as to
a director.
C. The Corporation may also indemnify and advance expenses
to an officer, employee, or agent, whether or not a director, to
the extent, consistent with public policy, that may be provided
by the Articles of Incorporation, general or specific action of
its Board of Directors, or contract.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
director, officer, employee, or agent of the Corporation, or who,
while a director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by the individual
in that capacity or arising from the individual's status as a
director, officer, employee, or agent, whether or not the
Corporation would have power to indemnify the individual against
the same liability under Section 2 or 3 of this Article.
Section 9. Remedy Not Exclusive of Other Rights.
A. The indemnification and advance for expenses provided
for or authorized by this Article does not exclude any other
rights to indemnification and advance for expenses that a person
may have under:
(1) The Corporation's Articles of Incorporation;
(2) A resolution of the Board of Directors or of the
shareholders; or
(3) Any other authorization, whenever adopted, after
notice, by a majority vote of all the voting shares then issued
and outstanding.
B. If the Articles of Incorporation, resolution of the
Board of Directors or of the shareholders, or other duly adopted
authorization of indemnification or advance for expenses limit
indemnification or advance for expenses, indemnification and
advance for expenses are valid only to the extent consistent with
the Articles, resolution of the Board of Directors or of
the shareholders, or other duly adopted authorization of
indemnification or advance for expenses.
C. This Article does not limit a Corporation's power to pay
or reimburse expenses incurred by a director, officer, employee,
or agent in connection with the person's appearance as a witness
in a proceeding at a time when the person has not been made a
named defendant or respondent to the proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1)
either the Chairman, Chief Executive Officer, President, or a
Vice President, and (2) any one of the following officers:
Secretary or Assistant Secretary, Treasurer or Assistant
Treasurer. All certificates shall be consecutively numbered in
each class of shares. The name and address of the person owning
the shares represented thereby, with the number of shares and the
date of issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a
new certificate is issued the old certificates shall be
surrendered for cancellation.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or
printed.
In case any officer designated for the purpose, who has
signed or whose facsimile signature has been used on any such
certificate, shall, from any cause, cease to be such officer
before the certificate has been delivered by the Corporation, the
certificate may nevertheless be adopted by the Corporation and be
issued and delivered as though the person had not ceased to be
such officer.
Section 4. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not
exceeding thirty (30) days preceding the date of any meeting of
shareholders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote
thereat or to receive such dividends or rights as the case may
be; or the Board of Directors may close the books of the
Corporation against transfer of shares during the whole or any
part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the
Board of Directors (or the Executive Committee, if there be one
and the authority to declare dividends is delegated to the
Executive Committee by the Board of Directors) and paid in cash,
shares, or other property out of the annual net income to the
Corporation or out of its net assets in excess of its capital,
computed in accordance with the state statute and subject to the
conditions and limitations imposed by the Articles of
Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other
class of shares.
Before payment of any dividends or making distribution of
any profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of
Directors (or Executive Committee, if there be one and the
authority to declare dividends or make distributions is delegated
to the Executive Committee) from time to time in its absolute
discretion thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors
or unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer
or
Assistant Treasurer. The Board of Directors may by
resolution adopted at any meeting designate officers of the
Corporation who may in the name of the Corporation execute
checks, drafts and orders for the payment of money in its behalf
and, in the discretion of the Board of Directors, such officers
may be so authorized to sign such checks singly without necessity
for counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice
required to be given by these By-Laws to a director or officer
may be given in writing, personally served or through the United
States Mail, or by telephone, telegram, cablegram or radiogram,
and such notice shall be deemed to be given at the time when the
same shall be thus transmitted. Any notice required to be given
by these By-Laws may be waived by the person entitled to such
notice.
ARTICLE XI
Amendment
Section 1. Amendment. The Board of Directors, by the
affirmative vote of a majority thereof, may at any regular or
upon notice at any special meeting, alter or amend these By-Laws,
except as to such matters as are required to be regulated by the
Articles of Incorporation of the Corporation.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
LAWRENCEBURG GAS COMPANY
ARTICLE 1
Identification
Section 1.01. Name. The name of the Corporation is
LAWRENCEBURG GAS COMPANY (the "Corporation").
ARTICLE 2
Purpose and Powers
Section 2.01. Purpose. The purpose for which the
Corporation is formed is the transaction of any or all lawful
business for which corporations may be incorporated under the
Indiana Business Corporation Law, as the same may, from time to
time, be amended (the "Act").
Section 2.02. Powers. The Corporation shall have the same
power as an individual to do all things necessary or convenient
to carry out its business and affairs, including without
limitation all the powers specifically enumerated in the Act.
ARTICLE 3
Registered Office and Registered Agent
Section 3.01. Registered Office. The street address of the
registered office of the Corporation is:
230 West High Street
Lawrenceburg, Indiana 47025
Section 3.02. Registered Agent. The name and post office
address of the Corporation's Registered Agent are:
The Cincinnati Gas & Electric Company
230 West High Street
Lawrenceburg, Indiana 47025
ARTICLE 4
Terms of Shares
Section 4.01. Amount. The total number of shares that the
Corporation shall have authority to issue is eleven thousand
(11,000) shares.
Section 4.02. Designations of Classes and Relative Rights
of Shares. All shares of the Corporation shall be of one class
and shall be known as shares of Common Stock (the "Shares"). All
Shares shall have the same relative rights, preferences and
limitations.
Section 4.03. Issuance of Shares. The Board of Directors
of the Corporation (the "Board") has authority to authorize and
direct the issuance by the Corporation of Shares at such times,
in such amounts, to such persons, for such considerations and
upon such terms and conditions as it may, from time to time,
determine, subject only to the restrictions, limitations,
conditions and requirements imposed by the Act, other applicable
laws and these Articles of Incorporation, as the same may, from
time to time, be otherwise amended (the "Articles").
Section 4.04. Voting Rights. Each holder of Shares shall
have the right, at every Shareholders' meeting, to one vote for
each such Share standing in his name on the books of the
Corporation, except as otherwise provided in the Act.
Section 4.05. Distributions Upon Shares. The Board has
authority to authorize and direct the payment of dividends and
the making of other distributions by the Corporation in respect
of the issued and outstanding Shares at such times, in such
amounts and forms, from such sources and upon such terms and
conditions as it may, from time to time, determine, subject only
to the restrictions, limitations, conditions and requirements
imposed by the Act, other applicable laws, and the Articles.
Section 4.06. Acquisition of Shares. The Board has
authority to authorize and direct the acquisition by the
Corporation of the issued and outstanding Shares at such times,
in such amounts, from such persons, for such considerations, from
such sources and upon such terms and conditions as it may, from
time to time, determine, subject only to the restrictions,
limitations, conditions and requirements imposed by the Act,
other applicable laws and the Articles.
Section 4.07. Record Ownership of Shares or Rights. The
Corporation, to the extent permitted by law, shall be entitled to
treat the person in whose name any Share or any right of the
Corporation (a "Right") is registered on the books of the
Corporation as the owner thereof, for all purposes, and shall not
be bound to recognize any equitable or other claim to, or
interest in, such Share or Right on the part of any other person,
whether or not the Corporation shall have notice thereof.
ARTICLE 5
Directors
Section 5.01. Number. The number of members of the Board
of the Corporation shall be specified in, or fixed in accordance
with, the By-Laws of the Corporation, as the same may, from time
to time, be amended (the "By-Laws"). If and whenever the By-Laws
do not contain a provision specifying the number of members of
the Board, the number shall be three (3).
ARTICLE 6
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Section 6.01. Location of Meetings. Meetings of the
shareholders of the Corporation (the "Shareholders") or the Board
may be held at such place, within or without the State of
Indiana, as may be specified in the respective notices or waivers
of notice thereof.
Section 6.02. By-Laws. The Board shall have power, without
the assent or vote of the Shareholders, to make, alter, amend or
repeal the By-Laws, by the affirmative vote of a number of
Directors equal to a majority of the number of all Directors who
are elected and qualified at the time of such action.
Section 6.03. Direction of Purposes and Exercise of Powers
by Directors. The Board, subject to any specific limitations or
restrictions imposed by the Act or the Articles, shall direct the
carrying out of the purpose and exercise the powers of the
Corporation, without previous authorization or subsequent
approval by the Shareholders.
Section 6.04. Amendments of Articles of Incorporation. The
Corporation reserves the right to amend, alter, change or repeal
any provision contained in the Articles or in any amendment
hereto, or to add any provision to the Articles or to any
amendment hereto, in any manner now or hereafter prescribed or
permitted by the Act or by any other applicable statute of the
State of Indiana; and all rights conferred upon the Shareholders
in the Articles are granted subject to this reservation. No
Shareholder has a vested property right resulting from any
provision in the Articles, or authorized to be in the By-Laws by
the Act or the Articles, including without limitation provisions
relating to management, control, capital structure, dividend
entitlement, or purpose or duration of the Corporation.
BY-LAWS
OF
LAWRENCEBURG GAS COMPANY
ARTICLE I
Offices
Section 1. Offices. The registered office of the Corporation
shall be in the City of Lawrenceburg, County of Dearborn, State of
Indiana. The Corporation may establish an office in the City of
Cincinnati, State of Ohio, and offices at such other places as the
Board of Directors may from time to time or the business of the
Corporation may require.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the State of
Indiana, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of the
reports to be laid before the meeting and the transaction of such
other business as may be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate one-fourth of all the shares outstanding and
entitled to vote thereat, upon notice in writing, stating the time,
place and purpose of the meeting. Business transacted at all
special meetings shall be confined to the objects stated in the
call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days before the date of the meeting.
Section 5. Waiver of Notice. Notice of any shareholders'
meeting may be waived in writing by any shareholder if the waiver
sets forth, in reasonable detail, the purpose for which the meeting
is called, and time and place thereof. Attendance at any meeting,
in person or by proxy, shall constitute a waiver of notice of such
meeting.
Section 6. Quorum. At any meeting of the shareholders, the
holders of a majority of the shares of stock of the Corporation,
issued and outstanding, and entitled to vote, present in person by
proxy, shall constitute a quorum for all purposes, unless otherwise
specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or represented
at any meeting of the shareholders, the shareholders entitled to
vote, present in person or by proxy, shall have power to adjourn
the meeting from time to time without further notice, other than by
announcement at the meeting, until the requisite amount of voting
stock shall be present. At any such adjourned meeting, at which a
quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally called.
Section 7. Voting. At any meeting of the shareholders, every
shareholder having the right to vote shall be entitled to vote in
person, or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless said instrument
provides for a longer period.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his name on the books of
the Corporation, at the date fixed for determination of persons
entitled to vote at the meeting or, if no date has been fixed, then
at the date of the meeting.
A complete list of shareholders entitled to vote at the
shareholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any shareholder, and such list shall be
prima facie evidence of the ownership of shares and of the right of
shareholders to vote, when certified by the Secretary or by the
agent of the Corporation having charge of the transfer of shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of Directors (who need not be shareholders)
consisting of not less than four (4) persons nor more than nine
(9), who shall be elected annually by the shareholders at the
annual meeting. Each director shall hold office until his
successor shall have been elected and qualified. Any director may
resign at any time. Vacancies occurring in the Board of Directors
shall be filled by a majority vote of the remaining members of the
board. A director thus elected to fill any vacancy shall hold
office for the unexpired term of his predecessor and until his
successor is elected and qualifies. Any director may be removed at
any time by the affirmative vote of a majority of the stock then
issued and entitled to vote at a special meeting of shareholders
called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Indiana), for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3) days
written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Indiana), and upon such notice, as the Board
of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or may be
called by the written request of two (2) members of the Board of
Directors.
Section 5. Notice of Meetings. Notice of meeting shall be
given to each director in accordance with Article X, Section 1, of
these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a majority
of the directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than Directors who are paid salaries by the
Corporation or by The Cincinnati Gas & Electric Company or by any
of its affiliates) shall be entitled to receive for each meeting of
the Board of Directors which he shall attend, such fee as the Board
of Directors shall from time to time determine. The same payment
may also be made to any one other than a director officially called
to attend any such meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution passed by a majority of the whole board, designate
annually three (3) of their number to constitute an Executive
Committee, who to the extent provided in the resolution, shall
exercise in the intervals between the meetings of the Board of
Directors the powers of the board in the management of the business
and affairs of the Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may
consist of a Vice Chairman, a Chief Operating Officer, one or more
Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, or one or more Assistant Comptrollers, all
of whom shall be elected by the Board of Directors, and shall hold
office for one year and until their successors are chosen and
qualified.
Any two or more offices may be held by the same person, except
that the duties of the President and Secretary shall not be
performed by the same person. All vacancies occurring among any of
the above offices shall be filled by the Board of Directors. Any
officer may be removed with or without cause by the affirmative
vote of a majority of the number of directors at any meeting of the
Board of Directors.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or inability to act of the
Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform such
other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors. The Chairman of the Board
shall direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such other
officers as may be requested from time to time by such officers.
The Chairman shall be a member of the Executive Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in the
absence or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice Chairman shall perform such other
duties as may from time to time be assigned to him or her by the
Board of Directors. The Vice Chairman shall be a member of the
Executive Committee.
Section 5. The Chief Executive Officer. The Chief Executive
Officer shall be a director and shall preside at all meetings of
the shareholders, and, in the absence or inability to act of the
Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall submit a
report of the operations of the Corporation for the fiscal year to
the shareholders at their annual meeting and from time to time
shall report to the Board of Directors all matters within his or
her knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be the
chairman of the Executive Committee and ex officio a member of all
standing committees.
Section 6. The Chief Operating Officer. The Chief Operating
Officer of the Corporation, if there be one, shall have general and
active management and direction of the affairs of the Corporation,
shall have supervision of all departments and of all officers of
the Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried into
effect, and shall have the general powers and duties of supervision
and management usually vested in the office of a Chief Operating
Officer of a corporation. Unless otherwise provided, all corporate
officers and functions shall report directly to the Chief Operating
Officer, if there be one, or, if not, to the Chief Executive
Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
The Secretary shall keep in safe custody the seal of the
Corporation, and, whenever authorized by the Board of Directors or
the Executive Committee, affix the seal to any instrument requiring
the same.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board of
Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of all collections, receipts and disbursements in books
belonging to the Corporation, shall deposit all moneys and other
valuables in the name and to the credit of the Corporation, in such
depositories as may be directed by the Board of Directors, shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, or President, taking proper vouchers therefor, and shall
render to the Chief Executive Officer, Chief Operating Officer, or
President, and directors at all regular meetings of the board, or
whenever they may require it, and to the annual meeting of the
shareholders, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful performance
of the duties of his or her office and the restoration to the
Corporation in the case of his or her death, resignation or removal
from office of all books, papers, vouchers, money and other
property of whatever kind in his or her possession belonging to the
Corporation.
(b) Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to time
be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation pertaining
to moneys, properties, materials and supplies. He or she shall
have executive direction over the bookkeeping and accounting
departments and shall have general supervision over the records in
all other departments pertaining to moneys, properties, materials
and supplies. He or she shall have such other powers and duties as
are incident to the office of Comptroller of a corporation and
shall be subject at all times to the direction and control of the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, and a Vice President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the Assistant
Comptroller designated by the Comptroller, shall perform the duties
of the Comptroller and when so acting shall have all the powers of
and be subject to all the restrictions of the Comptroller. The
Assistant Comptrollers shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign predecessor
entity of the Corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of such
transaction.
B. "Director" means an individual who is or was a director of
the Corporation or an individual who while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, whether for profit or
not. Director includes the estate or personal representative of a
director.
C. "Expenses" include counsel fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a director, the office of
director in the Corporation; and
(2) When used with respect to an individual other than a
director, as contemplated in Section 3 of this Article, the office
in the Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
Corporation. "Official capacity" does not include service for any
other foreign or domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other enterprise, whether
for profit or not.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and whether formal or informal.
Section 2. Basis.
A. The Corporation shall indemnify an individual made a party
to a proceeding because the individual is or was a director against
liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
(2) The individual reasonably believed:
(a) In the case of conduct in the individual's
official capacity with the Corporation, that the individual's
conduct was in its best interests; and
(b) In all other cases, that the individual's conduct
was at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, the
individual either:
(a) Had reasonable cause to believe the individual's
conduct was lawful; or
(b) Had no reasonable cause to believe the
individual's conduct was unlawful.
B. A director's conduct with respect to any employee benefit
plan for a purpose the director reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirement of subsection (A)(2)(b).
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct described in this Section.
Section 3. Authorized. The Corporation shall indemnify a
director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which the director was a party
because the director is or was a director of the Corporation
against reasonable expenses incurred by the director in connection
with the proceeding.
Section 4. Before Final Disposition of Proceedings.
A. The Corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the Corporation a written
affirmation of the director's good faith belief that the director
has met the standard of conduct described in Section 2 of this
Article;
(2) The director furnishes the Corporation a written
undertaking, executed personally or on the director's behalf, to
repay the advance if it is ultimately determined that the director
did not meet the standard of conduct; and
(3) A determination is made that the facts then known to
those making the determination would not preclude indemnification
under this Article.
B. The undertaking required by subsection A(2) must be an
unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability
to make repayment.
C. Determinations and authorizations of payments under this
Section shall be made in the manner specified in Section 6 of this
Article.
Section 5. Judicial Order. A director of the Corporation who
is a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving
any notice the court considers necessary may order indemnification
if it determines:
(1) The director is entitled to mandatory indemnification
under Section 3 of this Article, in which case the court shall also
order the Corporation to pay the director's reasonable expenses
incurred to obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether
or not the director met the standard of conduct set forth in
Section 2 of this Article.
Section 6. Procedure for Determining Amount.
A. The Corporation may not indemnify a director under Section
2 of this Article unless authorized in the specific case after a
determination has been made that indemnification of the director is
permissible in the circumstances because the director has met the
standard of conduct set forth in Section 2 of this Article.
B. The determination shall be made by any one of the
following procedures:
(1) By the Board of Directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
or
(2) If a quorum cannot be obtained under subdivision (1),
by majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the
time parties to the proceeding; or
(3) By special legal counsel:
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subdivision (1) or (2); or
(b) If a quorum of the Board of Directors cannot be
obtained under subdivision (1) and a committee cannot be designated
under subdivision (2), selected by majority vote of the full Board
of Directors (in which selection directors who are parties may
participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if
the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses
shall be made by those entitled under subsection B(3) to select
counsel.
Section 7. Officers, Employees, or Agents.
A. An officer of the Corporation, whether or not a director,
is entitled to mandatory indemnification under Section 3 of this
Article, and is entitled to apply for court-ordered indemnification
under Section 5 of this Article, in each case to the same extent as
the director.
B. The Corporation shall indemnify and advance expenses under
this Article to an officer, employee, or agent of the Corporation,
whether or not a director, to the same extent as to a director.
C. The Corporation may also indemnify and advance expenses to
an officer, employee, or agent, whether or not a director, to the
extent, consistent with public policy, that may be provided by the
Articles of Incorporation, general or specific action of its Board
of Directors, or contract.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
director, officer, employee, or agent of the Corporation, or who,
while a director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by the individual in that capacity or arising
from the individual's status as a director, officer, employee, or
agent, whether or not the Corporation would have power to indemnify
the individual against the same liability under Section 2 or 3 of
this Article.
Section 9. Remedy Not Exclusive of Other Rights.
A. The indemnification and advance for expenses provided for
or authorized by this Article does not exclude any other rights to
indemnification and advance for expenses that a person may have
under:
(1) The Corporation's Articles of Incorporation;
(2) A resolution of the Board of Directors or of the
shareholders; or
(3) Any other authorization, whenever adopted, after
notice, by a majority vote of all the voting shares then issued and
outstanding.
B. If the Articles of Incorporation, resolution of the Board
of Directors or of the shareholders, or other duly adopted
authorization of indemnification or advance for expenses limit
indemnification or advance for expenses, indemnification and
advance for expenses are valid only to the extent consistent with
the Articles, resolution of the Board of Directors or of the
shareholders, or other duly adopted authorization of
indemnification or advance for expenses.
C. This Article does not limit a Corporation's power to pay
or reimburse expenses incurred by a director, officer, employee, or
agent in connection with the person's appearance as a
witness in a proceeding at a time when the person has not been
made a named defendant or respondent to the proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1) either
the Chairman, Chief Executive Officer, President, or a Vice
President, and (2) any one of the following officers: Secretary or
Assistant Secretary, Treasurer or Assistant Treasurer. All
certificates shall be consecutively numbered in each class of
shares. The name and address of the person owning the shares
represented thereby, with the number of shares and the date of
issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a new
certificate is issued the old certificates shall be surrendered for
cancellation.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or printed.
In case any officer designated for the purpose, who has signed
or whose facsimile signature has been used on any such certificate,
shall, from any cause, cease to be such officer before the
certificate has been delivered by the Corporation, the certificate
may nevertheless be adopted by the Corporation and be issued and
delivered as though the person had not ceased to be such officer.
Section 4. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceeding
thirty (30) days preceding the date of any meeting of shareholders
or any dividend payment date or any date for the allotment of
rights as a record date for the determination of the shareholders
entitled to notice of such meeting or to vote thereat or to receive
such dividends or rights as the case may be; or the Board of
Directors may close the books of the Corporation against transfer
of shares during the whole or any part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the Board
of Directors (or the Executive Committee, if there be one and the
authority to declare dividends is delegated to the Executive
Committee by the Board of Directors) and paid in cash, shares, or
other property out of the annual net income to the Corporation or
out of its net assets in excess of its capital, computed in
accordance with the state statute and subject to the conditions and
limitations imposed by the Articles of Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other class
of shares.
Before payment of any dividends or making distribution of any
profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of Directors
(or Executive Committee, if there be one and the authority to
declare dividends or make distribution is delegated to the
Executive Committee) from time to time in its absolute discretion
thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and
(2) any one of the following officers: Secretary or Assistant
Secretary, Treasurer or Assistant Treasurer. The Board of
Directors may by resolution adopted at any meeting designate
officers of the Corporation who may in the name of the Corporation
execute checks, drafts and orders for the payment of money in its
behalf and, in the discretion of the Board of Directors, such
officers may be so authorized to sign such checks singly without
necessity for counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these By-Laws to a director or officer may be given
in writing, personally served or through the United States Mail, or
by telephone, telegram, cablegram or radiogram, and such notice
shall be deemed to be given at the time when the same shall be thus
transmitted. Any notice required to be given by these By-Laws may
be waived by the person entitled to such notice.
ARTICLE XI
Corporate Seal
Section 1. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation and Lawrenceburg,
Indiana.
ARTICLE XII
Amendment
Section 1. Amendment. The Board of Directors, by the
affirmative vote of a majority thereof, may at any regular or upon
notice at any special meeting, alter or amend these By-Laws, except
as to such matters as are required to be regulated by the Articles
of Incorporation of the Corporation.
TRI-STATE IMPROVEMENT COMPANY
____________________
ARTICLES OF INCORPORATION
____________________
JANUARY 24, 1964
<PAGE>
ARTICLES OF INCORPORATION
OF
TRI-STATE IMPROVEMENT COMPANY
The undersigned, all of whom are citizens of the United
States, desiring to form a corporation for profit, under the
General Corporation Law of the State of Ohio, do hereby certify:
FIRST: The name of the corporation shall be Tri-State
Improvement Company
SECOND: The principal office of said corporation is to
be located in the City of Cincinnati, Hamilton County, Ohio
THIRD: The purposes of said corporation are as follows:
a. To acquire, hold, own, lease, option, develop, improve,
manage, mortgage, pledge, sell, transfer, contract concerning,
and in any manner dispose of and deal in and with real property,
interests in real property, investments, securities, goods,
wares, merchandise, and other personal property of any and every
class and description and wherever situate, and doing any and all
things necessary or incident thereto;
b. To borrow money and issue, sell or pledge bonds, notes, bills
of exchange debentures and other obligations and evidences of
indebtedness, payable at a specified time or times, or payable
upon the happening of a specified event or events, whether
secured by mortgage, pledge or otherwise, or unsecured;
c. To purchase, acquire, guarantee, hold and dispose of the
shares, bonds and other evidences of indebtedness or contracts of
any corporation, domestic or foreign;
d. To acquire the good will, rights and property, and to
undertake the whole or any part of the assets or liabilities of
any person, firm, association or corporation; to pay for the same
in cash, the stock of this corporation, bonds or otherwise; to
hold or in any manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner the whole
or any part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business;
e. To carry on any or all of its operations and businesses and
to promote its objects within the State of Ohio, or elsewhere,
without restriction as to place or amount;
f. To do any and all of the things herein set forth to the same
extent as natural person might or could do, and in any part of
the world, as principals, agents, contractors, trustees, a member
of a joint venture, or otherwise, alone or in company with
others.
FOURTH: The authorized number of shares of the
corporation is One Thousand (1,000), all of which shall be Common
Shares without par value.
FIFTH: The amount of capital with which the corporation
will begin business is Five Hundred Dollars ($500.00).
IN WITNESS WHEREOF, we have hereunto subscribed our names
this 9th day of January, 1964.
/s/ Julius J. Heidacher
Julius J. Heidacher
/s/ C. D. McClanahan
C. D. McClanahan
/s/ Mabel Gillson
Mabel Gillson
<PAGE>
STATE OF OHIO, COUNTY OF HAMILTON, SS:
Personally appeared before me the undersigned, a Notary
Public in and for the State of Ohio, this 9th day of January,
1964, the above-named Julius J. Heidacher, C. D. McClanahan, and
Mabel Gillson, who each severally acknowledged the signing of the
foregoing Articles of Incorporation to be his free act and deed
for the uses and purposes therein mentioned.
Witness my hand and official seal on the day and year last
aforesaid.
/s/ William J. Moran
Notary Public
WILLIAM J. MORAN, Attorney At Law
Notary Public, State of Ohio
My Commission has no Expiration Date
Section 147.03 K.C.
<PAGE>
APPOINTMENT OF STATUTORY AGENT
The undersigned, being a majority of the incorporators of Tri-
State Improvement Company, hereby appoint C. D. McClanahan, a
natural person resident in the county of which the corporation
has its principal office, upon whom any process, notice or demand
required or permitted by statute to be served upon the
corporation may be served. His complete address is 1401 Enquirer
Building, Cincinnati, Hamilton County, Ohio, 45202.
/s/ Julius J. Heidacher
Julius J. Heidacher
/s/ C. D. McClanahan
C. D. McClanahan
/s/ Mabel Gillson
Mabel Gillson
Cincinnati, Ohio
The 9th day of January, 1964.
ACCEPTANCE OF APPPOINTMENT
Tri-State Improvement Company
Gentlemen:
I hereby accept the foregoing appointment.
/s/ C. D. McClanahan
C. D. McClanahan
REGULATIONS
OF
TRI-STATE IMPROVEMENT COMPANY
ARTICLE I
Offices
Section 1. Offices. The location of the Corporation's
principal office shall be in the City of Cincinnati, County of
Hamilton, State of Ohio. The Corporation may, in addition to its
principal office in the State of Ohio, establish and maintain an
office or offices elsewhere in Ohio and in such other states and
places as the Board of Directors may from time to time find
necessary or desirable, at which the books, documents and papers of
the Corporation may be kept.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the state of
Ohio, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of the
reports to be laid before the meeting and the transaction of such
other business as may be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days and not more than forty-five
(45) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate twenty-five (25) percent of all the shares
outstanding and entitled to vote thereat, upon notice in writing,
stating the time, place and purpose of the meeting. Business
transacted at all special meetings shall be confined to the objects
stated in the call.
Section 4. Notice of Special Meeting. Notice of special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days and not more than forty-five (45) days prior to
the meeting.
Section 5. Waiver of Notice. Notice of the time, place and
purpose of any meeting of shareholders may be waived by the written
assent of every shareholder entitled to notice, filed with or
entered upon the records of the meeting, either before or after the
holding thereof.
Section 6. Quorum. The holders of shares entitling them to
exercise a majority of the voting power, present in person or by
proxy at any meeting of the shareholders, unless otherwise
specified by law, shall constitute a quorum.
1
If, however, at any meeting of the shareholders, a quorum
shall fail to attend in person or by proxy, a majority in interest
of the shareholders attending in person or by proxy at the time and
place of such meeting may adjourn the meeting from time to time
without further notice, other than by announcement at the meeting
at which such adjournment is taken, until a quorum shall be
present. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 7. Voting. At each meeting of the shareholders,
except as otherwise provided by statute or the Articles of
Incorporation, every holder of record of stock entitled to vote at
such meeting shall be entitled to vote in person or by proxy
appointed by an instrument in writing subscribed by such
shareholder and bearing a date not more than eleven (11) months
prior to said meeting unless some other definite period of validity
shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his or her name on the
books of the Corporation, at the date fixed for determination of
persons entitled to vote at the meeting or, if no date has been
fixed, then at the date next preceding the day of the meeting.
Cumulative voting shall be permitted only as expressly required by
statute.
At any meeting of shareholders, a list of shareholders
entitled to vote, alphabetically arranged, showing the number and
classes of shares held by each on the date fixed for closing the
books against transfers or the record date fixed as hereinbefore
provided (or if no such date has been fixed, then on the date of
the meeting) shall be produced on the request of any shareholder,
and such list shall be prima facie evidence of the ownership of
shares and of the right of shareholders to vote, when certified by
the Secretary or by the agent of the Corporation having charge of
the transfer of shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. Except as
otherwise provided by statute, all the corporate powers, business
and property of the Corporation shall be exercised, conducted and
controlled by a Board of five (5) Directors, who need not be
shareholders.
The directors shall be elected annually and each director
shall continue in office until the annual meeting held next after
his election, and until his successor shall have been elected and
qualified.
Any member of the Board of Directors may resign at any time by
giving written notice to the President or to the Secretary of the
Corporation.
All vacancies occurring in the Board of Directors, may be
filled by the remaining directors at any stated or special meeting.
A director thus elected to fill any vacancy shall hold office for
the unexpired term of his predecessor and until his successor is
elected and qualifies.
Any director may be removed at any time by the affirmative
vote of a majority of the stock then issued and entitled to vote at
a special meeting of shareholders called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly elected directors may meet
forthwith (either within or without the State of Ohio) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3) days
written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at any reasonable time and place (either
within or without the State of Ohio), and upon such notice, as the
Board of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or may be
called by the written request of two (2) members of the Board of
Directors.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these Regulations.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a majority
of the directors present at any such meeting, at which a quorum is
present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or any of its affiliates) shall be entitled to receive
as compensation for services such amounts as may be determined from
time to time by the Board of Directors in form either in fees for
attendance at the meeting of the Board of Directors, or by payment
at the rate of a fixed sum per month, or both. The same payment
may also be made to any one other than a director officially called
to attend any such meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution adopted by a majority of the whole board, designate
annually three (3) or more of their number, to constitute an
Executive Committee, and may delegate to such committee power to
exercise in the intervals between the meetings of the Board of
Directors the powers of the board in the management of the business
and affairs of the Corporation. Each member of the Executive
Committee shall continue to be a member thereof only during the
pleasure of a majority of the whole board.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
3
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may consist
of a Vice Chairman, a Chief Operating Officer, one or more Vice
Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, or one or more Assistant Comptrollers, all
of whom shall be elected by the Board of Directors, and shall hold
office for one year and until their successors are chosen and
qualified.
Any two of the offices of Vice President, Secretary and
Treasurer may be combined in one person. All vacancies occurring
among any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause by the
affirmative vote of a majority of the number of Directors at any
meeting of the Board of Directors.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or inability to act of the
Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform such
other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors. The Chairman of the Board
shall direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such other
officers as may be requested from time to time by such officers.
The Chairman shall be a member of the Executive Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in the
absence or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice Chairman shall perform such other
duties as may from time to time be assigned to him or her by the
Board of Directors. The Vice Chairman shall be a member of the
Executive Committee.
Section 5. The Chief Executive Officer. The Chief Executive
Officer shall be a director and shall preside at all meetings of
the shareholders, and, in the absence or inability to act of the
Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall submit a
report of the operations of the Corporation for the fiscal year to
the shareholders at their annual meeting and from time to time
shall report to the Board of Directors all matters within his or
her knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be the
chairman of the Executive Committee and ex officio a member of all
standing committees.
Section 6. The Chief Operating Officer. The Chief Operating
Officer of the Corporation, if there be one, shall have general and
active management and direction of the affairs of the Corporation,
shall have supervision of all departments and of all officers of
the Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried into
effect, and shall have the general powers and duties of supervision
and management usually vested in the office of a Chief Operating
Officer of a corporation. Unless otherwise provided, all corporate
officers and functions shall report directly to the Chief Operating
Officer, if there be one, or, if not, to the Chief Executive
Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board of
Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of all collections, receipts and disbursements in books
belonging to the Corporation, shall deposit all moneys and other
valuables in the name and to the credit of the Corporation, in such
depositories as may be directed by the Board of Directors, shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, or President, taking proper vouchers therefor, and shall
render to the Chief Executive Officer, Chief Operating Officer, or
President, and directors at all regular meetings of the board, or
whenever they may require it, and to the annual meeting of the
shareholders, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful performance
of the duties of his or her office and the restoration to the
Corporation in the case of his or her death, resignation or removal
from office of all books, papers, vouchers, money and other
property of whatever kind in his or her possession belonging to the
Corporation.
(b) Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to time
be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation pertaining
to moneys, properties, materials and supplies. He or she shall
have executive direction over the bookkeeping and accounting
departments and shall have general supervision over the records in
all other departments pertaining to moneys, properties, materials
and supplies. He or she shall have such other powers and duties as
are incident to the office of Comptroller of a corporation and
shall be subject at all times to the direction and control of the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, and a Vice President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the Assistant
Comptroller designated by the Comptroller, shall perform the duties
of the Comptroller and when so acting shall have all the powers of
and be subject to all the restrictions of the Comptroller. The
Assistant Comptrollers shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Indemnification of Directors, Officers, Employees,
and Agents.
(A) The Corporation shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(B) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for
profit, partnership, joint venture, trust, or other enterprise,
against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall
be made in respect of any of the following:
(1) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless, and only to
the extent that the court of common pleas, or the court in which
such action or suit was brought determines upon application
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper.
(2) Any action or suit in which the only liability asserted
against a director is pursuant to Section 1701.95 of the Ohio
Revised Code.
(C) To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in the
foregoing paragraphs of this Article, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him
in connection with the action, suit, or proceeding.
(D) Any indemnification under Paragraphs (A) and (B) of
Section 1 of this Article, unless ordered by a court, shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee,
officer, employee, or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in such
Paragraphs (A) and (B). Such determination shall be made as
follows: (1) by a majority vote of a quorum consisting of
directors of the indemnifying Corporation who were not and are not
parties to or threatened with any such action, suit, or proceeding;
(2) if the quorum described in (D)(1) of this Section is not
obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal
counsel other than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has performed services
for the Corporation or any person to be indemnified within the past
five years; (3) by the shareholders; or (4) by the court of common
pleas or the court in which such action, suit, or proceeding was
brought.
Any determination made by the disinterested directors under
(D)(1) of this Section or by independent legal counsel under (D)(2)
of this Section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
Corporation under (B) of this Section, and within 10 days after
receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
Section 2. Advances for Litigation Expenses may be Made.
Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, or agent in defending any action, suit,
or proceeding referred to in Section 1 of this Article, may be paid
by the Corporation as they are incurred in advance of the final
disposition of the action, suit, or proceeding as authorized by the
directors in the specific case upon receipt of an undertaking by or
on behalf of the director, trustee, officer, employee, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the Corporation.
Section 3. Indemnification Nonexclusive. The indemnification
provided by this Article shall not be exclusive of and shall be in
addition to any other rights granted to those seeking
indemnification under these Regulations, any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, trustee, officer, employee,
or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 4. Indemnity Insurance. The Corporation may purchase
and maintain insurance or furnish similar protection, including but
not limited to trust funds, letters of credit, or self-insurance,
on behalf of or for any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Section. Insurance
may be purchased from or maintained with a person in which the
Corporation has a financial interest.
Section 5. Payments of Expenses Not Limited. The
indemnification provided by Sections 1(A) and (B) of this Article
does not limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to Sections 2, 3, and 4 of this Article.
Sections 1(A) and (B) of this Article do not create any obligation
to repay or return payments made by the Corporation pursuant to
Sections 2, 3, or 4 of this Article.
Section 6. Survival of Indemnification. As used in this
Article, references to "Corporation" include all constituent
corporations in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer,
employee, or agent of such a constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, shall stand
in the same position under this Article with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1) either
the Chairman, Chief Executive Officer, President, or a Vice
President, and (2) any one of the following officers: Secretary or
Assistant Secretary, Treasurer or Assistant Treasurer. All
certificates shall be consecutively numbered in each class of
shares. The name and address of the person owning the shares
represented thereby, with the number of shares and the date of
issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a new
certificate is issued the old certificates shall be surrendered for
cancellation.
Section 3. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceeding
forty-five (45) days preceding the date of any meeting of
shareholders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote thereat
or to receive such dividends or rights as the case may be; or the
Board of Directors may close the books of the Corporation against
transfer of shares during the whole or any part of such period.
Section 4. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the Board
of Directors (or the Executive Committee, if there be one and the
authority to declare dividends is delegated to the Executive
Committee by the Board of Directors) and paid in cash, shares, or
other property out of the annual net income to the Corporation or
out of its net assets in excess of its capital, computed in
accordance with the state statute and subject to the conditions and
limitations imposed by the Articles of Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other class
of shares.
Before payment of any dividends or making distribution of any
profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of Directors
(or Executive Committee, if there be one and the authority to
declare dividends or make distributions is delegated to the
Executive Committee) from time to time in its absolute discretion
thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer or
Assistant Treasurer. The Board of Directors may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute checks, drafts and
orders for the payment of money in its behalf and, in the
discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these Regulations to a director or officer may be
given in writing, personally served or through the United States
Mail, or by telephone, telegram, cablegram or radiogram, and such
notice shall be deemed to be given at the time when the same shall
be thus transmitted. Any notice required to be given by these
Regulations may be waived by the person entitled to such notice.
ARTICLE XI
Amendment
Section 1. Amendment. These Regulations may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise a two-thirds majority
of the voting power on such proposal.
REGULATIONS
OF
TRI-STATE IMPROVEMENT COMPANY
ARTICLE I
Offices
Section 1. Offices. The location of the Corporation's
principal office shall be in the City of Cincinnati, County of
Hamilton, State of Ohio. The Corporation may, in addition to its
principal office in the State of Ohio, establish and maintain an
office or offices elsewhere in Ohio and in such other states and
places as the Board of Directors may from time to time find
necessary or desirable, at which the books, documents and papers of
the Corporation may be kept.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the state of
Ohio, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of the
reports to be laid before the meeting and the transaction of such
other business as may be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days and not more than forty-five
(45) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate twenty-five (25) percent of all the shares
outstanding and entitled to vote thereat, upon notice in writing,
stating the time, place and purpose of the meeting. Business
transacted at all special meetings shall be confined to the objects
stated in the call.
Section 4. Notice of Special Meeting. Notice of special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days and not more than forty-five (45) days prior to
the meeting.
Section 5. Waiver of Notice. Notice of the time, place and
purpose of any meeting of shareholders may be waived by the written
assent of every shareholder entitled to notice, filed with or
entered upon the records of the meeting, either before or after the
holding thereof.
Section 6. Quorum. The holders of shares entitling them to
exercise a majority of the voting power, present in person or by
proxy at any meeting of the shareholders, unless otherwise
specified by law, shall constitute a quorum.
1
If, however, at any meeting of the shareholders, a quorum
shall fail to attend in person or by proxy, a majority in interest
of the shareholders attending in person or by proxy at the time and
place of such meeting may adjourn the meeting from time to time
without further notice, other than by announcement at the meeting
at which such adjournment is taken, until a quorum shall be
present. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 7. Voting. At each meeting of the shareholders,
except as otherwise provided by statute or the Articles of
Incorporation, every holder of record of stock entitled to vote at
such meeting shall be entitled to vote in person or by proxy
appointed by an instrument in writing subscribed by such
shareholder and bearing a date not more than eleven (11) months
prior to said meeting unless some other definite period of validity
shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his or her name on the
books of the Corporation, at the date fixed for determination of
persons entitled to vote at the meeting or, if no date has been
fixed, then at the date next preceding the day of the meeting.
Cumulative voting shall be permitted only as expressly required by
statute.
At any meeting of shareholders, a list of shareholders
entitled to vote, alphabetically arranged, showing the number and
classes of shares held by each on the date fixed for closing the
books against transfers or the record date fixed as hereinbefore
provided (or if no such date has been fixed, then on the date of
the meeting) shall be produced on the request of any shareholder,
and such list shall be prima facie evidence of the ownership of
shares and of the right of shareholders to vote, when certified by
the Secretary or by the agent of the Corporation having charge of
the transfer of shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. Except as
otherwise provided by statute, all the corporate powers, business
and property of the Corporation shall be exercised, conducted and
controlled by a Board of five (5) Directors, who need not be
shareholders.
The directors shall be elected annually and each director
shall continue in office until the annual meeting held next after
his election, and until his successor shall have been elected and
qualified.
Any member of the Board of Directors may resign at any time by
giving written notice to the President or to the Secretary of the
Corporation.
All vacancies occurring in the Board of Directors, may be
filled by the remaining directors at any stated or special meeting.
A director thus elected to fill any vacancy shall hold office for
the unexpired term of his predecessor and until his successor is
elected and qualifies.
Any director may be removed at any time by the affirmative
vote of a majority of the stock then issued and entitled to vote at
a special meeting of shareholders called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly elected directors may meet
forthwith (either within or without the State of Ohio) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3) days
written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at any reasonable time and place (either
within or without the State of Ohio), and upon such notice, as the
Board of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or may be
called by the written request of two (2) members of the Board of
Directors.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these Regulations.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a majority
of the directors present at any such meeting, at which a quorum is
present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or any of its affiliates) shall be entitled to receive
as compensation for services such amounts as may be determined from
time to time by the Board of Directors in form either in fees for
attendance at the meeting of the Board of Directors, or by payment
at the rate of a fixed sum per month, or both. The same payment
may also be made to any one other than a director officially called
to attend any such meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution adopted by a majority of the whole board, designate
annually three (3) or more of their number, to constitute an
Executive Committee, and may delegate to such committee power to
exercise in the intervals between the meetings of the Board of
Directors the powers of the board in the management of the business
and affairs of the Corporation. Each member of the Executive
Committee shall continue to be a member thereof only during the
pleasure of a majority of the whole board.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
3
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may consist
of a Vice Chairman, a Chief Operating Officer, one or more Vice
Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, or one or more Assistant Comptrollers, all
of whom shall be elected by the Board of Directors, and shall hold
office for one year and until their successors are chosen and
qualified.
Any two of the offices of Vice President, Secretary and
Treasurer may be combined in one person. All vacancies occurring
among any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause by the
affirmative vote of a majority of the number of Directors at any
meeting of the Board of Directors.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or inability to act of the
Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform such
other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors. The Chairman of the Board
shall direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such other
officers as may be requested from time to time by such officers.
The Chairman shall be a member of the Executive Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in the
absence or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice Chairman shall perform such other
duties as may from time to time be assigned to him or her by the
Board of Directors. The Vice Chairman shall be a member of the
Executive Committee.
Section 5. The Chief Executive Officer. The Chief Executive
Officer shall be a director and shall preside at all meetings of
the shareholders, and, in the absence or inability to act of the
Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall submit a
report of the operations of the Corporation for the fiscal year to
the shareholders at their annual meeting and from time to time
shall report to the Board of Directors all matters within his or
her knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be the
chairman of the Executive Committee and ex officio a member of all
standing committees.
Section 6. The Chief Operating Officer. The Chief Operating
Officer of the Corporation, if there be one, shall have general and
active management and direction of the affairs of the Corporation,
shall have supervision of all departments and of all officers of
the Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried into
effect, and shall have the general powers and duties of supervision
and management usually vested in the office of a Chief Operating
Officer of a corporation. Unless otherwise provided, all corporate
officers and functions shall report directly to the Chief Operating
Officer, if there be one, or, if not, to the Chief Executive
Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board of
Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of all collections, receipts and disbursements in books
belonging to the Corporation, shall deposit all moneys and other
valuables in the name and to the credit of the Corporation, in such
depositories as may be directed by the Board of Directors, shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, or President, taking proper vouchers therefor, and shall
render to the Chief Executive Officer, Chief Operating Officer, or
President, and directors at all regular meetings of the board, or
whenever they may require it, and to the annual meeting of the
shareholders, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful performance
of the duties of his or her office and the restoration to the
Corporation in the case of his or her death, resignation or removal
from office of all books, papers, vouchers, money and other
property of whatever kind in his or her possession belonging to the
Corporation.
(b) Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to time
be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation pertaining
to moneys, properties, materials and supplies. He or she shall
have executive direction over the bookkeeping and accounting
departments and shall have general supervision over the records in
all other departments pertaining to moneys, properties, materials
and supplies. He or she shall have such other powers and duties as
are incident to the office of Comptroller of a corporation and
shall be subject at all times to the direction and control of the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, and a Vice President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the Assistant
Comptroller designated by the Comptroller, shall perform the duties
of the Comptroller and when so acting shall have all the powers of
and be subject to all the restrictions of the Comptroller. The
Assistant Comptrollers shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Indemnification of Directors, Officers, Employees,
and Agents.
(A) The Corporation shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(B) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for
profit, partnership, joint venture, trust, or other enterprise,
against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall
be made in respect of any of the following:
(1) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless, and only to
the extent that the court of common pleas, or the court in which
such action or suit was brought determines upon application
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper.
(2) Any action or suit in which the only liability asserted
against a director is pursuant to Section 1701.95 of the Ohio
Revised Code.
(C) To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in the
foregoing paragraphs of this Article, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him
in connection with the action, suit, or proceeding.
(D) Any indemnification under Paragraphs (A) and (B) of
Section 1 of this Article, unless ordered by a court, shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee,
officer, employee, or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in such
Paragraphs (A) and (B). Such determination shall be made as
follows: (1) by a majority vote of a quorum consisting of
directors of the indemnifying Corporation who were not and are not
parties to or threatened with any such action, suit, or proceeding;
(2) if the quorum described in (D)(1) of this Section is not
obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal
counsel other than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has performed services
for the Corporation or any person to be indemnified within the past
five years; (3) by the shareholders; or (4) by the court of common
pleas or the court in which such action, suit, or proceeding was
brought.
Any determination made by the disinterested directors under
(D)(1) of this Section or by independent legal counsel under (D)(2)
of this Section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
Corporation under (B) of this Section, and within 10 days after
receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
Section 2. Advances for Litigation Expenses may be Made.
Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, or agent in defending any action, suit,
or proceeding referred to in Section 1 of this Article, may be paid
by the Corporation as they are incurred in advance of the final
disposition of the action, suit, or proceeding as authorized by the
directors in the specific case upon receipt of an undertaking by or
on behalf of the director, trustee, officer, employee, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the Corporation.
Section 3. Indemnification Nonexclusive. The indemnification
provided by this Article shall not be exclusive of and shall be in
addition to any other rights granted to those seeking
indemnification under these Regulations, any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, trustee, officer, employee,
or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 4. Indemnity Insurance. The Corporation may purchase
and maintain insurance or furnish similar protection, including but
not limited to trust funds, letters of credit, or self-insurance,
on behalf of or for any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Section. Insurance
may be purchased from or maintained with a person in which the
Corporation has a financial interest.
Section 5. Payments of Expenses Not Limited. The
indemnification provided by Sections 1(A) and (B) of this Article
does not limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to Sections 2, 3, and 4 of this Article.
Sections 1(A) and (B) of this Article do not create any obligation
to repay or return payments made by the Corporation pursuant to
Sections 2, 3, or 4 of this Article.
Section 6. Survival of Indemnification. As used in this
Article, references to "Corporation" include all constituent
corporations in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer,
employee, or agent of such a constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, shall stand
in the same position under this Article with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1) either
the Chairman, Chief Executive Officer, President, or a Vice
President, and (2) any one of the following officers: Secretary or
Assistant Secretary, Treasurer or Assistant Treasurer. All
certificates shall be consecutively numbered in each class of
shares. The name and address of the person owning the shares
represented thereby, with the number of shares and the date of
issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a new
certificate is issued the old certificates shall be surrendered for
cancellation.
Section 3. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceeding
forty-five (45) days preceding the date of any meeting of
shareholders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote thereat
or to receive such dividends or rights as the case may be; or the
Board of Directors may close the books of the Corporation against
transfer of shares during the whole or any part of such period.
Section 4. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the Board
of Directors (or the Executive Committee, if there be one and the
authority to declare dividends is delegated to the Executive
Committee by the Board of Directors) and paid in cash, shares, or
other property out of the annual net income to the Corporation or
out of its net assets in excess of its capital, computed in
accordance with the state statute and subject to the conditions and
limitations imposed by the Articles of Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other class
of shares.
Before payment of any dividends or making distribution of any
profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of Directors
(or Executive Committee, if there be one and the authority to
declare dividends or make distributions is delegated to the
Executive Committee) from time to time in its absolute discretion
thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer or
Assistant Treasurer. The Board of Directors may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute checks, drafts and
orders for the payment of money in its behalf and, in the
discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these Regulations to a director or officer may be
given in writing, personally served or through the United States
Mail, or by telephone, telegram, cablegram or radiogram, and such
notice shall be deemed to be given at the time when the same shall
be thus transmitted. Any notice required to be given by these
Regulations may be waived by the person entitled to such notice.
ARTICLE XI
Amendment
Section 1. Amendment. These Regulations may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise a two-thirds majority
of the voting power on such proposal.
ARTICLES OF INCORPORATION
OF
KO TRANSMISSION COMPANY
The undersigned, desiring to form a corporation for profit
under Chapter 271B of the Kentucky Revised Statutes, does hereby
state as follows:
ARTICLE I. The name of the corporation shall be KO
Transmission Company.
ARTICLE II. The purposes for which the corporation is
formed are:
To engage in any lawful act or activity
for which corporations for profit may be
incorporated under Chapter 271B of the
Kentucky Revised Statutes.
ARTICLE III. The period of duration of the corporation
shall be perpetual.
ARTICLE IV. The street address of the corporation's
registered office in the Commonwealth of Kentucky and the name of
its registered agent at that office is:
The Cincinnati Gas & Electric Company
c/o The Union Light, Heat and Power Company
107 Brent Spence Square
Covington, KY 41011
ARTICLE V. The mailing address of the corporation's
principal office is:
139 East Fourth Street
Cincinnati, OH 45202
ARTICLE VI. The number of shares which the corporation
is authorized to have outstanding is one hundred (100) common
shares, par value $1.00 per share.
ARTICLE VII. No Director of the Corporation shall be
personally liable to the Corporation for monetary damages for
breach of his or her duties as a director, except to the extent
required by Kentucky Revised Statutes Section 271B.2-020(2)(d) or
any successor provision thereto.
ARTICLE VIII. The name and mailing address of the
incorporator is:
James J. Mayer
The Cincinnati Gas & Electric Company
139 East Fourth Street
Cincinnati, OH 45202
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
his name on the 11th day of April, 1994.
/s/ James J. Mayer
James J. Mayer
Incorporator
BY-LAWS
OF
KO TRANSMISSION COMPANY
ARTICLE I
Offices
Section 1. Offices. The registered office of the Corpora-
tion shall be located in the City of Covington, Commonwealth of
Kentucky. The Corporation may establish branch offices and
conduct and carry on business at such other places within or
without the Commonwealth of Kentucky as the Board of Directors
may from time to time fix or designate, and any business
conducted or carried on at such other place or places shall be as
binding and effectual as if transacted at the registered office
of the Corporation.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders may be held either within or without the
Commonwealth of Kentucky, at such place, time, and date
designated by the Board of Directors, for the election of
directors, the consideration of the reports to be laid before the
meeting and the transaction of such other business as may be
brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days, and not more than forty (40)
days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate one-fifth of all the shares outstanding and
entitled to vote thereat, upon notice in writing, stating the
time, place and purpose of the meeting. Business transacted at
all special meetings shall be confined to the objects stated in
the call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, not
less than ten (10) nor more than thirty-five (35) days after the
receipt of said request.
Section 5. Waiver of Notice. Notice of any shareholders'
meeting may be waived in writing by any shareholder at any time
before or after the meeting.
Section 6. Quorum. At any meeting of the shareholders, 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 constitute a quorum for all purposes, unless
otherwise specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or repre-
sented at any meeting of the shareholders, the shareholders
entitled to vote, present in person or by proxy, shall have power
to adjourn the meeting from time to time without further notice,
other than by announcement at the meeting, until the requisite
amount of voting stock shall be present. At any such adjourned
meeting, at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as
originally called.
Section 7. Voting. At any meeting of the shareholders,
every shareholder having the right to vote shall be entitled to
vote in person, or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless some other
definite period of validity shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his or her name on the
books of the Corporation, at the date fixed for determination of
persons entitled to vote at the meeting or, if no date has been
fixed, then at the date of the meeting. Cumulative voting shall
be permitted only as expressly required by statute.
A complete list of shareholders entitled to vote at the
shareholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any shareholder, and such list shall
be prima facie evidence of the ownership of shares and of the
right of shareholders to vote, when certified by the Secretary or
by the agent of the Corporation having charge of the transfer of
shares.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of four (4) Directors (who need not be
shareholders), who shall be elected annually by the shareholders
at the annual meeting. Each director shall hold office until his
successor shall have been elected and qualified. Any director
may resign at any time. Vacancies occurring in the Board of
Directors shall be filled by a majority vote of the remaining
members of the board. A director thus elected to fill any
vacancy shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualifies.
Any director may be removed at any time by the affirmative vote
of a majority of the stock then issued and entitled to vote at a
special meeting of shareholders called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the Commonwealth of Kentucky)
for the purpose of organization, the election of officers and the
transaction of other business. If a majority of the directors be
then present no prior notice of such meeting shall be required to
be given. The place and time of such first meeting may, however,
be fixed by written consent of all the directors, or by three (3)
days written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the Commonwealth of Kentucky), and upon such notice, as
the Board of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman, Vice Chairman,
Chief Executive Officer, Chief Operating Officer, or President,
or may be called by the written request of two (2) members of the
Board of Directors.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1,
of these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a
majority of the directors present at any such meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of
the Corporation or of The Cincinnati Gas & Electric Company or
any of its affiliates) shall be entitled to receive as
compensation for services such amounts as may be determined from
time to time by the Board of Directors in form either in fees for
attendance at the meeting of the Board of Directors, or by
payment at the rate of a fixed sum per month, or both. The same
payment may also be made to any one other than a director
officially called to attend any such meeting.
Section 8. Executive Committee. The Board of Directors
may, by resolution passed by a majority of the whole board,
designate annually three (3) of their number to constitute an
Executive Committee, who to the extent provided in the
resolution, shall exercise in the intervals between the meetings
of the Board of Directors the powers of the board in the
management of the business and affairs of the Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to
the Board of Directors at its meeting next succeeding such
action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may
also appoint such other standing or temporary committees from
time to time as they may see fit, delegating to such committees
all or any part of their own powers. The members of such
committees shall be entitled to receive such fees as the board
may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may
consist of a Vice Chairman, a Chief Operating Officer, one or
more Vice Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, or one or more Assistant Comptrollers,
all of whom shall be elected by the Board of Directors, and shall
hold office for one year and until their successors are chosen
and qualified.
Any two or more offices may be held by the same person,
except that the duties of the President and Secretary shall not
be performed by the same person. All vacancies occurring among
any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause by
the affirmative vote of a majority of the number of directors at
any meeting of the Board of Directors.
Section 2. Subordinate Officers. The Board of Directors
may appoint such other officers and agents with such powers and
duties as they shall deem necessary.
Section 3. The Chairman of the Board. The Chairman of the
Board shall be a director and shall preside at all meetings of
the Board of Directors and, in the absence or inability to act of
the Chief Executive Officer, meetings of shareholders and shall,
subject to the board's direction and control, be the board's
representative and medium of communication, and shall perform
such other duties as may from time to time be assigned to the
Chairman of the Board by the Board of Directors. The Chairman of
the Board shall direct the long-term strategic planning process
of the Corporation and shall also lend his or her expertise to
such other officers as may be requested from time to time by such
officers. The Chairman shall be a member of the Executive
Committee.
Section 4. The Vice Chairman. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in
the absence or inability to act of the Chief Executive Officer
and the Chairman of the Board. The Vice Chairman shall perform
such other duties as may from time to time be assigned to him or
her by the Board of Directors. The Vice Chairman shall be a
member of the Executive Committee.
Section 5. The Chief Executive Officer. The Chief
Executive Officer shall be a director and shall preside at all
meetings of the shareholders, and, in the absence or inability to
act of the Chairman of the Board and the Vice Chairman, at all
meetings of the Board of Directors. The Chief Executive Officer
shall submit a report of the operations of the Corporation for
the fiscal year to the shareholders at their annual meeting and
from time to time shall report to the Board of Directors all
matters within his or her knowledge which the interests of the
Corporation may require be brought to their notice. The Chief
Executive Officer shall be the chairman of the Executive
Committee and ex officio a member of all standing committees.
Section 6. The Chief Operating Officer. The Chief
Operating Officer of the Corporation, if there be one, shall have
general and active management and direction of the affairs of the
Corporation, shall have supervision of all departments and of all
officers of the Corporation, shall see that the orders and
resolutions of the Board of Directors and of the Executive
Committee are carried into effect, and shall have the general
powers and duties of supervision and management usually vested in
the office of a Chief Operating Officer of a corporation. Unless
otherwise provided, all corporate officers and functions shall
report directly to the Chief Operating Officer, if there be one,
or, if not, to the Chief Executive Officer.
Section 7. The President. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer, or Chief Operating Officer.
Section 8. The Vice Presidents. The Vice Presidents shall
perform such duties as the Board of Directors shall from time to
time require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
Section 9(a). The Secretary. The Secretary shall attend
all meetings of the Board of Directors, of the Executive
Committee and of the shareholders and act as clerk thereof and
record all votes and the minutes of all proceedings in a book to
be kept for that purpose, and shall perform like duties for the
standing committees when required.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board
of Directors and shall perform such other duties as may be
prescribed from time to time by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, or President.
(b) Assistant Secretaries. At the request of the
Secretary, or in his or her absence or inability to act, the
Assistant Secretary or, if there be more than one, the Assistant
Secretary designated by the Secretary, shall perform the duties
of the Secretary and when so acting shall have all the powers of
and be subject to all the restrictions of the Secretary. The
Assistant Secretaries shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Secretary.
Section 10(a). The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and
accurate accounts of all collections, receipts and disbursements
in books belonging to the Corporation, shall deposit all moneys
and other valuables in the name and to the credit of the
Corporation, in such depositories as may be directed by the Board
of Directors, shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, Chief Executive Officer,
Chief Operating Officer, or President, taking proper vouchers
therefor, and shall render to the Chief Executive Officer, Chief
Operating Officer, or President, and directors at all regular
meetings of the board, or whenever they may require it, and to
the annual meeting of the shareholders, an account of all his or
her transactions as Treasurer and of the financial condition of
the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful
performance of the duties of his or her office and the
restoration to the Corporation in the case of his or her death,
resignation or removal from office of all books, papers,
vouchers, money and other property of whatever kind in his or her
possession belonging to the Corporation.
(b) Assistant Treasurers. At the request of the Treasurer,
or in his or her absence or inability to act, the Assistant
Treasurer or, if there be more than one, the Assistant Treasurer
designated by the Treasurer, shall perform the duties of the
Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions of the Treasurer. The Assistant
Treasurers shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Treasurer.
Section 11(a). The Comptroller. The Comptroller shall have
control over all accounts and records of the Corporation
pertaining to moneys, properties, materials and supplies. He or
she shall have executive direction over the bookkeeping and
accounting departments and shall have general supervision over
the records in all other departments pertaining to moneys,
properties, materials and supplies. He or she shall have such
other powers and duties as are incident to the office of
Comptroller of a corporation and shall be subject at all times to
the direction and control of the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, and a Vice
President.
(b) Assistant Comptrollers. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the
Assistant Comptroller designated by the Comptroller, shall
perform the duties of the Comptroller and when so acting shall
have all the power of and be subject to all the restrictions of
the Comptroller. The Assistant Comptrollers shall perform such
other duties as may from time to time be assigned to them by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President, or Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
B. "Director" means an individual who is or was a
Director of the Corporation or an individual who, while a
Director of the Corporation, is or was serving at the
Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or
other
enterprise. A Director shall be considered to be serving an
employee benefit plan at the Corporation's request if his or her
duties to the Corporation also impose duties on, or otherwise
involve services by, him or her to the plan or to participants in
or beneficiaries of the plan. "Director" includes, unless the
context requires otherwise, the estate or personal representative
of a Director.
C. "Expenses" include counsel fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a Director, the office of
Director in the Corporation; and
(2) When used with respect to an individual other than
a Director, as contemplated in Section 6, the office in the
Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
Corporation. "Official capacity" shall not include service for
any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan, or other enterprise.
F. Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Section 2. Indemnification.
A. Except as provided in subsection (D) of this Section,
the Corporation shall indemnify an individual made a party to a
proceeding because he or she is or was a Director against
liability incurred in the proceeding if:
(1) He or she conducted himself or herself in good
faith; and
(2) He or she reasonably believed:
(a) In the case of conduct in his or her official
capacity with the Corporation, that his or her conduct was in its
best interest; and
(b) In all other cases, that his or her conduct
was at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he or she
had no reasonable cause to believe his or her conduct was
unlawful.
B. A Director's conduct with respect to an employee
benefit plan for a purpose he or she reasonably believed to be in
the interests of the participants in and beneficiaries of the
plan shall be conduct that satisfies the requirement of
subsection A(2)(b) of this Section.
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contender or its
equivalent shall not be, of itself, determinative that the
Director did not meet the standard of conduct described in this
Section.
D. The Corporation may not indemnify a Director under
this Section:
(1) In connection with a proceeding by or in the right
of the Corporation in which the Director was adjudged liable to
the Corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him or her, whether or not involving
action in his or her official capacity, in which he or she was
adjudged liable on the basis that personal benefit was improperly
received by him or her.
E. Indemnification permitted under this Section in
connection with a proceeding by or in the right of the
Corporation shall be limited to reasonable expenses incurred in
connection with the proceeding.
Section 3. Mandatory Indemnification. Unless limited by
the Articles of Incorporation, the Corporation shall indemnify a
Director who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which he or she was a party
because he or she is or was a Director of the Corporation against
reasonable expenses incurred by him or her in connection with the
proceeding.
Section 4. Advance for Expenses.
A. The Corporation may pay for or reimburse the
reasonable expenses incurred by a Director who is a party to a
proceeding in advance of final disposition of the proceeding if:
(1) The Director furnishes the Corporation a
written affirmation of his or her good faith belief that he or
she has met the standard of conduct described in Section 2;
(2) The Director furnishes the Corporation a
written undertaking, executed personally or on his or her behalf,
to repay the advance if it is ultimately determined that he or
she did not meet the standard of conduct; and
(3) A determination is made that the facts then
known to those making the determination would not preclude
indemnification under this Article.
B. The undertaking required by subsection A(2) of this
Section shall be an unlimited general obligation of the Director
but shall not be required to be secured and may be accepted
without reference to financial ability to make repayment.
C. Determinations and authorizations of payments under
this Section shall be made in the manner specified in Section 5.
Section 5. Determination and Authorization of
Indemnification.
A. The Corporation shall not indemnify a Director under
Section 2 of this Article unless authorized in the specific case
after a determination has been made that indemnification of the
Director is permissible in the circumstances because he or she
has met the standard of conduct set forth in Section 2.
B. The determination shall be made:
(1) By the Board of Directors by majority vote of a
quorum consisting of Directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subsection
B(1) of this Section, by majority vote of a committee duly
designated by the Board of Directors (in which designation
Directors who are parties may participate), consisting solely of
two or more Directors not at the time parties to the proceeding;
(3) By special legal counsel:
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subsection B(1) and (2) of
this Section; or
(b) If quorum of the Board of Directors cannot
be obtained under subsection B(1) of this Section and a committee
cannot be designated under subsection B(2) of this Section,
selected by majority vote of the full Board of Directors (in
which selection Directors who are parties may participate); or
(4) By the shareholders, but shares owned by or
voted under the control of Directors who are at the time parties
to the proceeding shall not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection B(3) of this Section to select counsel.
Section 6. Indemnification of Officers, Employees, and
Agents. Unless the Corporation's Articles of Incorporation
provide otherwise:
A. An officer of the Corporation who is not a Director
shall be entitled to mandatory indemnification under Section 3,
and is entitled to apply for court-ordered indemnification under
the Kentucky Business Corporation Act, in each case to the same
extent as a Director;
B. The Corporation may indemnify and advance expenses
under this Article to an officer, employee, or agent of the
Corporation who is not a Director to the same extent as to a
Director; and
C. The Corporation may also indemnify and advance
expenses to an officer, employee, or agent who is not a Director
to the extent, consistent with public policy, that may be
provided by the Articles of Incorporation, By-Laws, general or
specific action of the Board of Directors, or contract.
Section 7. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
Director, officer, employee, or agent of the Corporation, or who,
while a Director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by him or her in
that capacity or arising from his or her status as a Director,
officer, employee, or agent, whether or not the Corporation would
have power to indemnify him or her against the same liability
under Section 2 or Section 3.
Section 8. Application of this Article.
A. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the By-Laws, any agreement, vote of shareholders or disinterested
Directors, or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
B. This Article shall not limit the Corporation's power
to pay or reimburse expenses incurred by a Director in connection
with his or her appearance as a witness at a proceeding at a time
when he or she has not been made a named defendant or respondent
to the proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1)
either the Chairman, Chief Executive Officer, President, or a
Vice President, and (2) any one of the following officers:
Secretary or Assistant Secretary, Treasurer or Assistant
Treasurer. All certificates shall be consecutively numbered in
each class of shares. The name and address of the person owning
the shares represented thereby, with the number of shares and the
date of issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a
new certificate is issued the old certificates shall be
surrendered for cancellation.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or
printed.
In case any officer designated for the purpose, who has
signed or whose facsimile signature has been used on any such
certificate, shall, from any cause, cease to be such officer
before the certificate has been delivered by the Corporation, the
certificate may nevertheless be adopted by the Corporation and be
issued and delivered as though the person had not ceased to be
such officer.
Section 4. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not
exceeding forty (40) days preceding the date of any meeting of
shareholders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote
thereat or to receive such dividends or rights as the case may
be; or the Board of Directors may close the books of the
Corporation against transfer of shares during the whole or any
part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the
Board of Directors (or the Executive Committee, if there be one
and the authority to declare dividends is delegated to the
Executive Committee by the Board of Directors) and paid in cash,
shares, or other property out of the annual net income to the
Corporation or out of its net assets in excess of its capital,
computed in accordance with the state statute and subject to the
conditions and limitations imposed by the Articles of
Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other
class of shares.
Before payment of any dividends or making distribution of
any profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of
Directors (or Executive Committee, if there be one and the
authority to declare dividends or make distributions is delegated
to the Executive Committee) from time to time in its absolute
discretion thinks proper as a reserve fund for any purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors
or unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer
or Assistant Treasurer. The Board of Directors may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute checks, drafts and
orders for the payment of money in its behalf and, in the
discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice
required to be given by these By-Laws to a director or officer
may be given in writing, personally served or through the United
States Mail, or by telephone, telecopy, telegram, cablegram or
radiogram, and such notice shall be deemed to be given at the
time when the same shall be thus transmitted. Any notice
required to be given by these By-Laws may be waived by the person
entitled to such notice.
ARTICLE XI
Amendment
Section 1. Amendment. These By-Laws may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise a two-thirds majority
of the voting power on such proposal.
CERTIFICATE OF INCORPORATION
OF
Cinergy Investments, Inc.
The undersigned, for the purpose of organizing a
corporation under the General Corporation Law of the State of
Delaware, certifies:
FIRST: The name of the corporation is Cinergy
Investments, Inc.
SECOND: The address of the corporation's registered
office in the State of Delaware is the Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801, County of New
Castle. The name of its registered agent 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 of common stock, par value one cent ($.01) per share.
FIFTH: The name and mailing address of the
incorporator is Rodrigo J. Howard, 1 Chase Manhattan Plaza,
55th Floor, New York, New York 10005.
SIXTH: A director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended
after the date of the filing of this Certificate to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
No repeal or modification of this Article SIXTH shall apply to or
have any effect on the liability or alleged liability of any
director of the corporation for or with respect to any acts or
omissions of such director occurring prior to such repeal or
modification.
SEVENTH: The directors shall have power to make, alter
or repeal by-laws, except as may otherwise be provided in the by-
laws.
EIGHTH: Elections of directors need not be by written
ballot, except as may otherwise be provided in the by-laws.
WITNESS my signature this 24th day of October, 1994.
Sole Incorporator
BY-LAWS
OF
Cinergy Investments, Inc.
ARTICLE I
Stockholders
Section 1.1 Annual Meeting. Except as otherwise
provided in Section 1.9 of these By-Laws, an annual meeting of
stockholders of the Corporation for the election of directors and
for the transaction of any other proper business shall be held at
such time and date in each year as the Board of Directors may
determine. The annual meeting in each year shall be held at such
place within or without the State of Delaware as may be fixed by
the Board of Directors.
Section 1.2 Special Meetings. A special meeting of
the holders of stock of the Corporation entitled to vote on any
business to be considered at any such meeting may be called by
the Chairman of the Board, if any, or the President or any Vice
President, and shall be called by the Chairman of the Board, if
any, or the President or the Secretary when directed to do so by
resolution of the Board of Directors or at the written request of
directors representing a majority of the whole Board of
Directors. Any such request shall state the purpose or purposes
of the proposed meeting.
Section 1.3 Notice of Meetings. Whenever stockholders
are required or permitted to take any action at a meeting, unless
notice is waived in writing by all stockholders entitled to vote
at the meeting, a written notice of the meeting shall be given
which shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for
which the meeting is called.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any
meeting shall be given personally or by mail, not less than ten
nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed given when deposited in the mail, postage
prepaid, directed to the stockholder at his or her address as it
appears on the records of the Corporation.
When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the Corporation
may transact any business which might have been transacted at the
original meeting. If, however, the adjournment is for more than
thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 1.4 Quorum. Except as otherwise provided by
law or by the Certificate of Incorporation or by these By-Laws in
respect of the vote required for a specified action, at any
meeting of stockholders the holders of a majority of the
outstanding stock entitled to vote thereat, either present or
represented by proxy, shall constitute a quorum for the
transaction of any business, but the stockholders present,
although less than a quorum, may adjourn the meeting to another
time or place and, except as provided in the last paragraph of
Section 1.3 of these By-Laws, notice need not be given of the
adjourned meeting.
Section 1.5 Voting. Whenever directors are to be
elected at a meeting, they shall be elected by a plurality of the
votes cast at the meeting by the holders of stock entitled to
vote. Whenever any corporate action, other than the election of
directors, is to be taken by vote of stockholders at a meeting,
it shall, except as otherwise required by law or by the
Certificate of Incorporation or by these By-Laws, be authorized
by a majority of the votes cast at the meeting by the holders of
stock entitled to vote thereon.
Except as otherwise provided by law, or by the
Certificate of Incorporation, each holder of record of stock of
the Corporation entitled to vote on any matter at any meeting of
stockholders shall be entitled to one vote for each share of such
stock standing in the name of such holder on the stock ledger of
the Corporation on the record date for the determination of the
stockholders entitled to vote at the meeting.
Upon the demand of any stockholder entitled to vote,
the vote for directors or the vote on any other matter at a
meeting shall be by written ballot, but otherwise the method of
voting and the manner in which votes are counted shall be
discretionary with the presiding officer at the meeting.
Section 1.6 Presiding Officer and Secretary. At every
meeting of stockholders the Chairman of the Board, or in his or
her absence (or if there be none) the President, or in his or her
absence a Vice President, or, if none be present, the appointee
of the meeting, shall preside. The Secretary, or in his or her
absence an Assistant Secretary, or if none be present, the
appointee of the presiding officer of the meeting, shall act as
secretary of the meeting.
Section 1.7 Proxies. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer
period. Every proxy shall be signed by the stockholder or by his
duly authorized attorney.
Section 1.8 List of Stockholders. The officer who has
charge of the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who
is present.
The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the
list required by this Section or the books of the Corporation, or
to vote in person or by proxy at any meeting of stockholders.
Section 1.9 Written Consent of Stockholders in Lieu of
Meeting. Any action required by statute to be taken at any
annual or special meeting of stockholders of the Corporation, or
any action which may be taken at any annual or special meeting of
the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were
present and voted. Prompt written notice of the taking of the
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not
consented in writing. Any such written consent may be given by
one or any number of substantially concurrent written instruments
of substantially similar tenor signed by such stockholders, in
person or by attorney or proxy duly appointed in writing, and
filed with the Secretary or an Assistant Secretary of the
Corporation. Any such written consent shall be effective as of
the effective date thereof as specified therein, provided that
such date is not more than sixty days prior to the date such
written consent is filed as aforesaid, or, if no such date is so
specified, on the date such written consent is filed as
aforesaid.
ARTICLE II
Directors
Section 2.1 Number of Directors. The Board of
Directors shall consist of 2 directors until changed as provided
in this Section. The number of directors may be changed at any
time and from time to time by vote at a meeting or by written
consent of the holders of stock entitled to vote on the election
of directors, or by a resolution of the Board of Directors passed
by a majority of the whole Board of Directors, except that no
decrease shall shorten the term of any incumbent director unless
such director is specifically removed pursuant to Section 2.5 of
these By-Laws at the time of such decrease.
Section 2.2 Election and Term of Directors. Directors
shall be elected annually, by election at the annual meeting of
stockholders or by written consent of the holders of stock
entitled to vote thereon in lieu of such meeting. If the annual
election of directors is not held on the date designated
therefor, the directors shall cause such election to be held as
soon thereafter as convenient. Each director shall hold office
from the time of his or her election and qualification until his
successor is elected and qualified or until his or her earlier
resignation, or removal.
Section 2.3 Vacancies and Newly Created Directorships.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by
election at a meeting of stockholders or by written consent of
the holders of stock entitled to vote thereon in lieu of a
meeting. Except as otherwise provided by law, vacancies and such
newly created directorships may also be filled by a majority of
the directors then in office, although less than a quorum, or by
a sole remaining director.
Section 2.4 Resignation. Any director may resign at
any time upon written notice to the Corporation. Any such
resignation shall take effect at the time specified therein or,
if the time be not specified, upon receipt thereof, and the
acceptance of such resignation, unless required by the terms
thereof, shall not be necessary to make such resignation
effective.
Section 2.5 Removal. Any or all of the directors may
be removed at any time, with or without cause, by vote at a
meeting or by written consent of the holders of stock entitled to
vote on the election of directors.
Section 2.6 Meetings. Meetings of the Board of
Directors, regular or special, may be held at any place within or
without the State of Delaware. Members of the Board of Directors,
or of any committee designated by the Board, may participate in a
meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute
presence in person at such meeting. An annual meeting of the
Board of Directors shall be held after each annual election of
directors. If such election occurs at an annual meeting of
stockholders, the annual meeting of the Board of Directors shall
be held at the same place and immediately following such meeting
of stockholders, and no notice thereof need be given. If an
annual election of directors occurs by written consent in lieu of
the annual meeting of stockholders, the annual meeting of the
Board of Directors shall take place as soon after such written
consent is duly filed with the Corporation as is practicable,
either at the next regular meeting of the Board of Directors or
at a special meeting. The Board of Directors may fix times and
places for regular meetings of the Board and no notice of such
meetings need be given. A special meeting of the Board of
Directors shall be held whenever called by the Chairman of the
Board, if any, or by the President or by at least one-third of
the directors for the time being in office, at such time and
place as shall be specified in the notice or waiver thereof.
Notice of each special meeting shall be given by the Secretary or
by a person calling the meeting to each director by mailing the
same, postage prepaid, not later than the second day before the
meeting, or personally or by telegraphing or telephoning the same
not later than the day before the meeting.
Section 2.7 Quorum and Voting. A majority of the
total number of directors shall constitute a quorum for the
transaction of business, but, if there be less than a quorum at
any meeting of the Board of Directors, a majority of the
directors present may adjourn the meeting from time to time, and
no further notice thereof need be given other than announcement
at the meeting which shall be so adjourned. Except as otherwise
provided by law, by the Certificate of Incorporation, or by
these By-Laws, the vote of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the
Board of Directors.
Section 2.8 Written Consent of Directors in Lieu of a
Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all members of the Board or of such
committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 2.9 Compensation. Directors may receive
compensation for services to the Corporation in their capacities
as directors or otherwise in such manner and in such amounts as
may be fixed from time to time by the Board of Directors.
Section 2.10 Contracts and Transactions Involving
Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his,
her or their votes are counted for such purpose, if: (1) the
material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or
(2) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
ARTICLE III
Committees of the Board of Directors
Section 3.1 Appointment and Powers. The Board of
Directors may from time to time, by resolution passed by majority
of the whole Board, designate one or more committees, each
committee to consist of one or more directors of the Corporation.
The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. The
resolution of the Board of Directors may, in addition or
alternatively, provide that in the absence or disqualification of
a member of a committee, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he,
she or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board
of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it, except as otherwise provided by law. Unless the
resolution of the Board of Directors expressly so provides, no
such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Any such
committee may adopt rules governing the method of calling and
time and place of holding its meetings. Unless otherwise
provided by the Board of Directors, a majority of any such
committee (or the member thereof, if only one) shall constitute a
quorum for the transaction of business, and the vote of a
majority of the members of such committee present at a meeting
at which a quorum is present shall be the act of such committee.
Each such committee shall keep a record of its acts and
proceedings and shall report thereon to the Board of Directors
whenever requested so to do. Any or all members of any such
committee may be removed, with or without cause, by resolution of
the Board of Directors, passed by a majority of the whole Board.
ARTICLE IV
Officers, Agents and Employees
Section 4.1 Appointment and Term of Office. The
officers of the Corporation may include a President, a Secretary
and a Treasurer, and may also include a Chairman of the Board,
one or more Vice Presidents, one or more Assistant Secretaries
and one or more Assistant Treasurers. All such officers shall
be appointed by the Board of Directors or by a duly authorized
committee thereof. Any number of such offices may be held by the
same person, but no officer shall execute, acknowledge or verify
any instrument in more than one capacity. Except as may be
prescribed otherwise by the Board of Directors or a committee
thereof in a particular case, all such officers shall hold their
offices at the pleasure of the Board for an unlimited term and
need not be reappointed annually or at any other periodic
interval. The Board of Directors may appoint, and may delegate
power to appoint, such other officers, agents and employees as it
may deem necessary or proper, who shall hold their offices or
positions for such terms, have such authority and perform such
duties as may from time to time be determined by or pursuant to
authorization of the Board of Directors.
Section 4.2 Resignation and Removal. Any officer may
resign at any time upon written notice to the Corporation. Any
officer, agent or employee of the Corporation may be removed by
the Board of Directors, or by a duly authorized committee
thereof, with or without cause at any time. The Board of
Directors or such a committee thereof may delegate such power of
removal as to officers, agents and employees not appointed by the
Board of Directors or such a committee. Such removal shall be
without prejudice to a person's contract rights, if any, but the
appointment of any person as an officer, agent or employee of the
Corporation shall not of itself create contract rights.
Section 4.3 Compensation and Bond. The compensation
of the officers of the Corporation shall be fixed by the Board of
Directors, but this power may be delegated to any officer in
respect of other officers under his or her control. The
Corporation may secure the fidelity of any or all of its
officers, agents or employees by bond or otherwise.
Section 4.4 Chairman of the Board. The Chairman of
the Board, if there be one, shall preside at all meetings of
stockholders and of the Board of Directors, and shall have such
other powers and duties as may be delegated to him or her by the
Board of Directors.
Section 4.5 President. The President shall be the
chief executive officer of the Corporation. In the absence of
the Chairman of the Board (or if there be none), he or she shall
preside at all meetings of the stockholders and of the Board of
Directors. He or she shall have general charge of the business
affairs of the Corporation. He or she may employ and discharge
employees and agents of the Corporation, except such as shall be
appointed by the Board of Directors, and he or she may delegate
these powers. The President may vote the stock or other
securities of any other domestic or foreign corporation of any
type or kind which may at any time be owned by the Corporation,
may execute any stockholders' or other consents in respect
thereof and may in his or her discretion delegate such powers by
executing proxies, or otherwise, on behalf of the Corporation.
The Board of Directors by resolution from time to time may confer
like powers upon any other person or persons.
Section 4.6 Vice Presidents. Each Vice President
shall have such powers and perform such duties as the Board of
Directors or the President may from time to time prescribe. In
the absence or inability to act of the President, unless the
Board of Directors shall otherwise provide, the Vice President
who has served in that capacity for the longest time and who
shall be present and able to act, shall perform all the duties
and may exercise any of the powers of the President. The
performance of any duty by a Vice President shall, in respect of
any other person dealing with the Corporation, be conclusive
evidence of his or her power to act.
Section 4.7 Treasurer. The Treasurer shall have
charge of all funds and securities of the Corporation, shall
endorse the same for deposit or collection when necessary and
deposit the same to the credit of the Corporation in such banks
or depositaries as the Board of Directors may authorize. He or
she may endorse all commercial documents requiring endorsements
for or on behalf of the Corporation and may sign all receipts and
vouchers for payments made to the Corporation. He or she shall
have all such further powers and duties as generally are incident
to the position of Treasurer or as may be assigned to him or her
by the President or the Board of Directors.
Section 4.8 Secretary. The Secretary shall record all
the proceedings of the meetings of the stockholders and directors
in a book to be kept for that purpose and shall also record
therein all action taken by written consent of the stockholders
or directors in lieu of a meeting. He or she shall attend to the
giving and serving of all notices of the Corporation. He or she
shall have custody of the seal of the Corporation and shall
attest the same by his or her signature whenever required. He or
she shall have charge of the stock ledger and such other books
and papers as the Board of Directors may direct, but he or she
may delegate responsibility for maintaining the stock ledger to
any transfer agent appointed by the Board of Directors. He or
she shall have all such further powers and duties as generally
are incident to the position of Secretary or as may be assigned
to him or her by the President or the Board of Directors.
Section 4.9 Assistant Treasurers. In the absence or
inability to act of the Treasurer, any Assistant Treasurer may
perform all the duties and exercise all the powers of the
Treasurer. The performance of any such duty shall, in respect of
any other person dealing with the Corporation, be conclusive
evidence of his or her power to act. An Assistant Treasurer
shall also perform such other duties as the Treasurer or the
Board of Directors may assign to him or her.
Section 4.10 Assistant Secretaries. In the absence or
inability to act of the Secretary, any Assistant Secretary may
perform all the duties and exercise all the powers of the
Secretary. The performance of any such duty shall, in respect of
any other person dealing with the Corporation, be conclusive
evidence of his or her power to act. An Assistant Secretary
shall also perform such other duties as the Secretary or the
Board of Directors may assign to him or her.
Section 4.11 Delegation of Duties. In case of the
absence of any officer of the Corporation, or for any other
reason that the Board of Directors may deem sufficient, the Board
of Directors may confer for the time being the powers or duties,
or any of them, of such officer upon any other officer or upon
any director.
Section 4.12 Loans to Officers and Employees; Guaranty
of Obligations of Officers and Employees. The Corporation may
lend money to, or guarantee any obligation of, or otherwise
assist any officer or other employee of the Corporation or any
subsidiary, including any officer or employee who is a director
of the Corporation or any subsidiary, whenever, in the judgment
of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the Corporation. The loan,
guaranty or other assistance may be with or without interest, and
may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge
of shares of stock of the Corporation.
ARTICLE V
Indemnification
Section 5.1 Indemnification of Directors, Officers,
Employees and Agents. 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 (including any action or suit by
or in the right of the Corporation to procure a judgment in its
favor) by reason of the fact that he or she is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the
Corporation, if, as and to the extent authorized by applicable
law, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the defense or
settlement of such action, suit or proceeding. Expenses incurred
by an officer or director in defending a civil or criminal
action, suit or proceeding shall be paid by the corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
corporation as authorized by statute. Such expenses incurred by
other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this By-law or statute in a specific case
shall not be deemed exclusive of any other rights to which any
person seeking indemnification or advancement of expenses may be
entitled under any lawful agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE VI
Common Stock
Section 6.1 Certificates. Certificates for stock of
the Corporation shall be in such form as shall be approved by the
Board of Directors and shall be signed in the name of the
Corporation by the Chairman or a Vice Chairman of the Board, if
any, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Such certificates may be sealed with the seal of the
Corporation or a facsimile thereof. Any of or all the signatures
on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with
the same effect as if he or she were such officer, transfer agent
or registrar at the date of issue.
Section 6.2 Transfers of Stock. Transfers of stock
shall be made only upon the books of the Corporation by the
holder, in person or by duly authorized attorney, and on the
surrender of the certificate or certificates for such stock
properly endorsed. The Board of Directors shall have the power
to make all such rules and regulations, not inconsistent with the
Certificate of Incorporation and these By-Laws and the law, as
the Board of Directors may deem appropriate concerning the issue,
transfer and registration of certificates for stock of the
Corporation. The Board may appoint one or more transfer agents
or registrars of transfers, or both, and may require all stock
certificates to bear the signature of either or both.
Section 6.3 Lost, Stolen or Destroyed Certificates.
The Corporation may issue a new stock certificate in the place of
any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate or his or her
legal representative to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate. The
Board of Directors may require such owner to satisfy other
reasonable requirements.
Section 6.4 Stockholder Record Date. In order that
the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other
action. Only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to notice of, and
to vote at, such meeting and any adjournment thereof, or to give
such consent, or to receive payment of such dividend or other
distribution, or to exercise such rights in respect of any such
change, conversion or exchange of stock, or to participate in
such action, as the case may be, notwithstanding any transfer of
any stock on the books of the Corporation after any record date
so fixed.
If no record date is fixed by the Board of Directors,
(l) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the date on which
notice is given, or, if notice is waived by all stockholders
entitled to vote at the meeting, at the close of business on the
day next preceding the day on which the meeting is held, (2) the
record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be at
the close of business on the day on which the first written
consent is expressed by the filing thereof with the Corporation
as provided in Section 1.9 of these By-Laws, and (3) the record
date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
ARTICLE VII
Seal
Section 7.1 Seal. The seal of the Corporation shall
be circular in form and shall bear, in addition to any other
emblem or device approved by the Board of Directors, the name of
the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
ARTICLE VIII
Waiver of Notice
Section 8.1 Waiver of Notice. Whenever notice is
required to be given by statute, or under any provision of the
Certificate of Incorporation or these By-Laws, a written waiver
thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to
notice. In the case of a stockholder, such waiver of notice may
be signed by such stockholder's attorney or proxy duly appointed
in writing. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any
written waiver of notice.
ARTICLE IX
Checks, Notes, Drafts, Etc.
Section 9.1 Checks, Notes, Drafts, Etc. Checks, notes,
drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money shall be signed by such
officer or officers or person or persons as the Board of
Directors or a duly authorized committee thereof may from time to
time designate.
ARTICLE X
Amendments
Section 10.1 Amendments. These By-Laws or any of them
may be altered or repealed, and new By-Laws may be adopted, by
the stockholders by vote at a meeting or by written consent
without a meeting. The Board of Directors shall also have power,
by a majority vote of the whole Board of Directors, to alter or
repeal any of these By-Laws, and to adopt new By-Laws.
ARTICLE XI
Emergency By-Laws
Section 11.1 Emergency By-Laws. The Emergency By-Laws
provided in this Section 11.1 shall be operative during any
emergency in the conduct of the business of the corporation
resulting from an attack on the United States or on a locality in
which the corporation conducts its business or customarily holds
meetings of its Board of Directors or its stockholders, or during
any nuclear or atomic disaster, or during the existence of any
catastrophe, or other similar emergency condition, as a result of
which a quorum of the Board of Directors or a standing committee
thereof cannot readily be convened for action notwithstanding any
different provision in the preceding By-Laws or in the
Certificate of Incorporation or in the law. To the extent not
inconsistent with the provisions of this Section, the By-Laws of
the Corporation shall remain in effect during any emergency and
upon its termination the Emergency By-Laws shall cease to be
operative. Any amendments of these Emergency By-Laws may make
any further or different provision that may be practical and
necessary for the circumstances of the emergency.
During any such emergency: (A) A meeting of the Board
of Directors or a committee thereof may be called by any officer
or director of the Corporation. Notice of the time and place of
the meeting shall be given by the person calling the meeting to
such of the directors as it may be feasible to reach by any
available means of communication. Such notice shall be given at
such time in advance of the meeting as circumstances permit in
the judgment of the person calling the meeting; (B) The director
or directors in attendance at the meeting shall constitute a
quorum; (C) The officers or other persons designated on a list
approved by the Board of Directors before the emergency, all in
such order of priority and subject to such conditions and for
such period of time (not longer than reasonably necessary after
the termination of the emergency) as may be provided in the
resolution approving the list, shall, to the extent required to
provide a quorum at any meeting of the Board of Directors, be
deemed directors for such meeting; (D) The Board of Directors,
either before or during any such emergency, may provide, and from
time to time modify, lines of succession in the event that during
such emergency any or all officers or agents of the corporation
shall for any reason be rendered incapable of discharging their
duties; (E) The Board of Directors, either before or during any
such emergency, may, effective in the emergency, change the head
office or designate several alternative head offices or regional
offices, or authorize the officers so to do; and (F) To the
extent required to constitute a quorum at any meeting of the
Board of Directors during such an emergency, the officers of the
corporation who are present shall be deemed, in order of rank and
within the same rank in order of seniority, directors for such
meeting.
No officer, director or employee acting in accordance
with any Emergency By-Laws shall be liable except for willful
misconduct.
These Emergency By-Laws shall be subject to repeal or
change by further action of the Board of Directors or by action
of the stockholders.
CERTIFICATE OF INCORPORATION
OF
CGE ECK, INC.
1. The name of the corporation is CGE ECK, Inc. (the
"Corporation").
2. The address of the Corporation's registered office in
the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is CT Corporation System.
3. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
4. The total number of shares the Corporation shall have
authority to issue is One Hundred (100) shares of common stock,
par value $.01 per share.
5. The name and mailing address of the Corporation's sole
incorporator is James J. Mayer, The Cincinnati Gas & Electric
Company, 139 East Fourth Street, Cincinnati, Ohio 45202.
6. The power to adopt, amend and repeal any or all of the
by-laws of the Corporation is conferred upon the directors of the
Corporation.
7. Elections of directors are not required to be by
written ballot except as, and to the extent that, written ballot
may be required by the by-laws of the Corporation.
8. No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability:
(A) for any breach of the director's duty of loyalty to the
Corporation or its stockholders; (B) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law; (C) under Section 174 of the General
Corporation Law of the State of Delaware; or (D) for any
transaction from which the director derived an improper personal
benefit. If the General Corporation Law of the State of Delaware
hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law
of the State of Delaware. Any repeal or modification of this
Article 8 shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of
the Corporation existing at the time of such repeal or
modification.
Dated March 3rd, 1994
/s/ James J. Mayer
James J. Mayer, Incorporator
BY-LAWS
OF
CGE ECK, INC.
ARTICLE I
Offices and Agent
Section 1. Offices. The registered office of the Corporation
shall be located in the City of Wilmington, New Castle County,
State of Delaware. The Corporation may establish branch offices
and conduct and carry on business at such other places within or
without the State of Delaware as the Board of Directors may from
time to time fix or designate, and any business conducted or
carried on at such other place or places shall be as binding as
effectual as if transacted at the registered office of the
Corporation.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders in each year shall be held at such hour on said day
and at place within or without the State of Delaware as may be
designated by the Board of Directors, or if not so fixed, at the
principal business office of the Corporation in the City of
Cincinnati,, County of Hamilton, State of Ohio, for the purpose of
electing directors and for the transaction of such other business
as may properly be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days, and not more than sixty (60)
days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the President or a Vice-
President, by the Board of Directors or by shareholders holding in
the aggregate one-fifth of the voting power of all the shares
outstanding and entitled to vote thereat, upon notice in writing,
stating the time, place and purpose of the meeting. Business
transacted at all special meetings shall be confined to the objects
stated in the call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, not
less than ten (10) nor more than sixty (60) days after the receipt
of said request.
Section 5. Waiver of Notice. Notice of any shareholders'
meeting may be waived in writing by any shareholder at any time
before or after the meeting.
Section 6. Quorum. At any meeting of the shareholders, 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 constitute a quorum for all purposes, unless
otherwise specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or represented
at any meeting of the shareholders, the shareholders entitled to
vote, present in person or by proxy, shall have power to adjourn
the meeting from time to time without further notice, other than by
announcement at the meeting, until the requisite amount of voting
stock shall be present. At any such adjourned meeting, at which a
quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally called.
Section 7. Voting. At any meeting of the shareholders, every
shareholder having the right to vote shall be entitled to vote in
person, or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting, unless some other
definite period of validity shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his name on the books of
the Corporation, at the date fixed for determination of persons
entitled to vote at the meeting, which date shall not exceed forty
(40) days preceding the date of meeting.
A complete list of shareholders entitled to vote at the
shareholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any shareholder, and such list shall be
prima facie evidence of the ownership of shares and of the right of
shareholders to vote, when certified by the Secretary or by the
agent of the Corporation having charge of the transfer of shares.
The list of shareholders shall be delivered to the Inspectors
of Election after their appointment at the meeting.
Section 8. Inspectors of Election. At each meeting of the
shareholders, the presiding officer of the meeting shall appoint
three (3) inspectors of election, who need not be shareholders.
The inspectors shall receive and count the votes, either upon an
election or for the decision of any question, and shall determine
the result. Their certificate of any vote shall be prima facie
evidence thereof.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of three (3) Directors, who need not be
shareholders. Directors shall be elected annually by the
shareholders at the annual meeting, and each director shall hold
office until his successor shall have been elected and qualified.
Any director may resign at any time. Vacancies occurring in the
Board of Directors shall be filled by the remaining members of the
board. A director thus elected to fill any vacancy shall hold
office for the unexpired term of his predecessor and until his
successor is elected and qualifies. Any director may be removed at
any time by the affirmative vote of a majority of the stock then
issued and entitled to vote at a special meeting of shareholders
called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Delaware) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3) days
written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Kentucky), and upon such notice, as the Board
of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Delaware) as determined by and may be called
by, the President or any Vice-President or any two (2) members of
the Board of Directors upon at least one hour prior notice.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum at all meetings for the transaction of
business.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or of The Cincinnati Gas & Electric Company or any of
its subsidiaries) shall be entitled to receive as compensation for
services such amounts as may be determined from time to time by the
Board of Directors in form either in fees for attendance at the
meeting of the Board of Directors, or by payment at the rate of a
fixed sum per month or both. The same payment may also be made to
any one other than a director officially called to attend any such
meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate
annually three (3) of their number (the President and two (2) other
members of the Board) to constitute an Executive Committee, who to
the extent provided in the resolution, shall exercise in the
intervals between the meetings of the Board of Directors the powers
of the Board in the management of the business and affairs of the
Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the Board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a President, one or more Vice-Presidents, one or more
Managing Directors, a Secretary and one or more Assistant
Secretaries and a Treasurer and one or more Assistant Treasurers,
all of whom shall be elected by the Board of Directors, and shall
hold office for one (1) year and until their successors are chosen
and qualified. The Board of Directors may, at its option, elect a
Chairman of the Board.
Any two or more offices may be held by the same person, except
that the duties of the President and Secretary shall not be
performed by the same person. All vacancies occurring among any of
the above offices shall be filled by the Board of Directors. Any
officer may be removed at any time by the affirmative vote of a
majority of the Board of Directors at a special meeting of the
Board of Directors called for the purpose.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. Chairman of the Board. The Chairman of the Board
of Directors, if there is one elected as herein provided, shall be
a director and shall preside at all meetings of the Board of
Directors and shall, subject to their direction and control, be
their representative and medium of communication, and shall perform
such duties as may from time to time be assigned to him by the
Board of Directors.
Section 4. President and Chief Executive Officer. The
President and Chief Executive Officer shall be a director and shall
be the chief executive officer of the Corporation. He shall
preside at all meetings of the shareholders and Executive Committee
and, in the absence of the Chairman of the Board of Directors, if
there be one, at all meetings of the Board of Directors. He shall
have general and active management of the business of the
Corporation, shall see that all orders and resolutions of the Board
of Directors or Executive Committee are carried into effect, and
shall have general powers and duties of supervision and management
usually vested in the office of President and chief executive
officer of a corporation.
Section 5. Vice-Presidents. The Vice-Presidents shall
perform such duties as the Board of Directors shall, from time to
time, require. In the absence or incapacity of the President, the
Vice-President designated by the President or Board of Directors or
Executive Committee shall exercise the powers and duties of the
President.
Section 6. Managing Directors. The Managing Directors shall
have authority to bind the Corporation to contractual obligations
and shall perform such duties as the Board of Directors shall, from
time to time, require.
Section 7. Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose.
He shall see that proper notice is given of all meetings of
the shareholders of the Corporation and of the Board of Directors
and shall perform such other duties as may be prescribed from time
to time by the Board of Directors or by the President.
Assistant Secretaries. At the request of the Secretary, or in
his absence or inability to act, the Assistant Secretary or, if
there be more than one, the Assistant Secretary designated by the
Secretary, shall perform the duties of the Secretary and when so
acting shall have all the
powers of and be subject to all the restrictions of the Secretary.
The Assistant Secretaries shall perform such other duties as may
from time to time be assigned to them by the President, the
Secretary, or the Board of Directors.
Section 8. Treasurer. The Treasurer shall be the financial
officer of the Corporation, shall keep full and accurate accounts
of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuables in the
name and to the credit of the Corporation, in such depositories as
may be directed by the Board of Directors, shall disburse the funds
of the Corporation as may be ordered by the Board of Directors or
by the President, taking proper vouchers therefor, and shall render
to the President and directors at all regular meetings of the Board
of Directors, or whenever they may require it, and to the annual
meeting of the shareholders, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
He shall also perform such other duties as the Board of
Directors may from time to time require.
He shall give a bond for the faithful discharge of his duties
in such sum as the Board of Directors may require.
Assistant Treasurers. At the request of the Treasurer, or in
his absence or inability to act, the Assistant Treasurer or, if
there be more than one, the Assistant Treasurer designated by the
Treasurer, shall perform the duties of the Treasurer and when so
acting shall have all the powers of and be subject to all the
restrictions of the Treasurer. The Assistant Treasurers shall
perform such other duties as may from time to time be assigned to
them by the President, the Treasurer, or the Board of Directors.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
B. "Director" means an individual who is or was a Director
of the Corporation or an individual who, while a Director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. A Director shall be
considered to be serving an employee benefit plan at the
Corporation's request if his or her duties to the Corporation also
impose duties on, or otherwise involve services by, him or her to
the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the
estate or personal representative of a Director.
C. "Expenses" include counsel fees and any expenses
incurred in connection with investigating or defending any claim.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a Director, the office of
Director in the Corporation; and
(2) When used with respect to an individual other than a
Director, as contemplated in Section 6, the office in the
Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
Corporation. "Official capacity" shall not include service for any
other foreign or domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other enterprise.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Section 2. Indemnification.
A. Except as provided in subsection (D) of this Section,
the Corporation shall indemnify an individual made a party to a
proceeding because he or she is or was a Director against liability
incurred in the proceeding if:
(1) He or she conducted himself or herself in good
faith; and
(2) He or she reasonably believed:
(a) In the case of conduct in his or her official
capacity with the Corporation, that his or her conduct was in its
best interest; and
(b) In all other cases, that his or her conduct was
at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he or she
had no reasonable cause to believe his or her conduct was unlawful.
B. A Director's conduct with respect to an employee
benefit plan for a purpose he or she reasonably believed to be in
the interests of the participants in and beneficiaries of the plan
shall be conduct that satisfies the requirement of subsection
A(2)(b) of this Section.
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not be, of itself, determinative that the Director
did not meet the standard of conduct described in this Section.
D. The Corporation may not indemnify a Director under this
Section:
(1) In connection with a proceeding by or in the right
of the Corporation in which the Director was adjudged liable to the
Corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him or her, whether or not involving
action in his or her official capacity, in which he or she was
adjudged liable on the basis that personal benefit was improperly
received by him or her.
E. Indemnification permitted under this Section in
connection with a proceeding by or in the right of the Corporation
shall be limited to reasonable expenses incurred in connection with
the proceeding.
Section 3. Mandatory Indemnification. Unless limited by the
Articles of Incorporation, the Corporation shall indemnify a
Director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he or she was a party
because he or she is or was a Director of the Corporation against
reasonable expenses incurred by him or her in connection with the
proceeding.
Section 4. Advance for Expenses.
A. The Corporation may pay for or reimburse the reasonable
expenses incurred by a Director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The Director furnishes the Corporation a written
affirmation of his or her good faith belief that he or she has met
the standard of conduct described in Section 2;
(2) The Director furnishes the Corporation a written
undertaking, executed personally or on his or her behalf, to repay
the advance if it is ultimately determined that he or she did not
meet the standard of conduct; and
(3) A determination is made that the facts then known
to those making the determination would not preclude
indemnification under this article.
B. The undertaking required by subsection A(2) of this
Section shall be an unlimited general obligation of the Director
but shall not be required to be secured and may be accepted without
reference to financial ability to make repayment.
C. Determinations and authorizations of payments under
this Section shall be made in the manner specified in Section 5.
Section 5. Determination and Authorization of
Indemnification.
A. The Corporation shall not indemnify a Director under
Section 2 of this Article unless authorized in the specific case
after a determination has been made that indemnification of the
Director is permissible in the circumstances because he or she has
met the standard of conduct set forth in Section 2.
B. The determination shall be made:
(1) By the Board of Directors by majority vote of a
quorum consisting of Directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subsection
B(1) of this Section, by majority vote of a committee duly
designated by the Board of Directors (in which designation
Directors who are parties may participate), consisting solely of
two or more Directors not at the time parties to the proceeding;
(3) By special legal counsel:
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subsection B(1) and (2) of
this Section; or
(b) If quorum of the Board of Directors cannot
be obtained under subsection B(1) of this Section and a committee
cannot be designated under subsection B(2) of this Section,
selected by majority vote of the full Board of Directors (in which
selection Directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of Directors who are at the time parties to the
proceeding shall not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if
the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses
shall be made by those entitled under subsection B(3) of this
Section to select counsel.
Section 6. Indemnification of Officers, Employees, and
Agents. Unless the Corporation's Articles of Incorporation provide
otherwise:
A. An officer of the Corporation who is not a Director
shall be entitled to mandatory indemnification under Section 3, and
is entitled to apply for court-ordered indemnification under the
Kentucky Business Corporation Act, in each case to the same extent
as a Director;
B. The Corporation may indemnify and advance expenses
under this Article to an officer, employee, or agent of the
Corporation who is not a Director to the same extent as to a
Director; and
C. The Corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a Director to the
extent, consistent with public policy, that may be provided by the
Articles of Incorporation, By-Laws, general or specific action of
the Board of Directors, or contract.
Section 7. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
Director, officer, employee, or agent of the Corporation, or who,
while a Director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him or her in that capacity or arising from
his or her status as a Director, officer, employee, or agent,
whether or not the Corporation would have power to indemnify him or
her against the same liability under Section 2 or 3.
Section 8. Application of this Article.
A. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the By-Laws, any agreement, vote of shareholders or disinterested
Directors, or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
B. This Article shall not limit the Corporation's power to
pay or reimburse expenses incurred by a Director in connection with
his or her appearance as a witness at a proceeding at a time when
he or she has not been made a named defendant or respondent to the
proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by the
President or a Vice-President and also by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer.
All certificates shall be consecutively numbered. The name and
address of the person owning the shares represented thereby, with
the number of such shares and the date of issue, shall be entered
on the Corporation's books.
Section 2. Transfer of Shares. Shares may be transferred on
the books of the Corporation by the holder in person or by his
attorney, upon the surrender and cancellation of certificates for a
like number of shares.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or printed.
In case any officer designated for the purpose, who has signed
or whose facsimile signature has been used on any such certificate,
shall, from any cause, cease to be such officer before the
certificate has been delivered by the Corporation, the certificate
may nevertheless be adopted by the Corporation and be issued and
delivered as though the person had not ceased to be such officer.
Section 4. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceeding
forty (40) days preceding the date of any meeting of shareholders
or any dividend payment date or any date for the allotment of
rights as a record date for the determination of the shareholders
entitled to notice of such meeting or to vote thereat
or to receive such dividends or rights as the case may be; or the
Board of Directors may close the books of the Corporation against
transfer of shares during the whole or any part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. The Board of Directors of the
Corporation may declare and the Corporation may pay dividends on
its outstanding shares in cash or property or in its own shares, or
may issue its own shares or securities in lieu of unpaid accrued
dividends, but no dividend shall be declared or paid or such issue
made at a time when the Corporation is insolvent or when such
payment or issue would render the Corporation insolvent or would
diminish the amount of the capital of the Corporation.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes may, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by either the President
or a Vice-President or a Managing Director. The Board of Directors
may by resolution adopted at any meeting designate officers of the
Corporation who may in the name of the Corporation execute checks,
drafts and orders for the payment of money in its behalf and, in
the discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these By-Laws to a shareholder, director or officer
may be given in writing, personally served or through the United
States Mail, or by telephone, telecopy, telegram, cablegram or
radiogram, and such notice shall be deemed to be given at the time
when the same shall be thus transmitted. Any notice required to be
given by these By-Laws may be waived by the person entitled to such
notice.
ARTICLE XI
Corporate Seal
Section 1. Corporate Seal. The corporate seal of the
Corporation shall consist of a metallic stamp, circular in form,
bearing in its center the word "Seal", and on the outer edge the
name of the Corporation.
ARTICLE XII
Amendment
Section 1. Amendment. These By-Laws may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise two-thirds of the
voting power on such proposal.
CERTIFICATE OF INCORPORATION
OF
CINERGY RESOURCES, INC.
1. The name of the Corporation is Cinergy Resources, Inc.
(the "Corporation").
2. The address of the Corporation's registered office in
the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Corporation Trust
Company.
3. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
4. The total number of shares the Corporation shall have
authority to issue is One Hundred (100) shares of common stock,
par value $.01 per share.
5. The name and mailing address of the Corporation's sole
incorporator is James J. Mayer, The Cincinnati Gas & Electric
Company, 139 East Fourth Street, Cincinnati, Ohio 45202.
6. The power to adopt, amend and repeal any or all of the
by-laws of the Corporation is conferred upon the directors of the
Corporation.
7. Elections of directors are not required to be by written
ballot except as, and to the extent that, written ballot may be
required by the by-laws of the Corporation.
8. No director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability:
(A) for any breach of the director's duty of loyalty to the
Corporation or its stockholders; (B) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law; (C) under Section 174 of the General
Corporation Law of the State of Delaware; or (D) for any
transaction from which the director derived an improper personal
benefit. If the General Corporation Law of the State of Delaware
hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitations on
personal liability provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law
of the State of Delaware. Any repeal or modification of this
Article 8 shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of
the Corporation existing at the time of such repeal or
modification.
Dated January 7, 1994
/s/ James J. Mayer
James J. Mayer, Incorporator
BY-LAWS
OF
CINERGY RESOURCES, INC.
ARTICLE I
Offices
Section 1. Offices. The registered office of the Corporation
shall be located in the City of Wilmington, New Castle County,
State of Delaware. The Corporation may establish branch offices
and conduct and carry on business at such other places within or
without the State of Delaware as the Board of Directors may from
time to time fix or designate, and any business conducted or
carried on at such other place or places shall be as binding as
effectual as if transacted at the registered office of the
Corporation.
ARTICLE II
Stockholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
stockholders shall be held at such place within or without the
State of Delaware as may be designated by the Board of Directors on
the first Wednesday of May in each year, if not a legal holiday,
and if a legal holiday, then on the next succeeding business day,
for the purpose of electing directors and for the transaction of
such other business as may properly be brought before the meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each stockholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days, and not more than sixty (60)
days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
stockholders may be called at any time by the President or a Vice-
President, by the Board of Directors or by stockholders holding in
the aggregate one-fifth of the voting power of all the shares
outstanding and entitled to vote thereat, upon notice in writing,
stating the time, place and purpose of the meeting. Business
transacted at all special meetings shall be confined to the objects
stated in the call.
Section 4. Notice of Special Meeting. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each stockholder entitled to vote thereat, not
less than ten (10) nor more than sixty (60) days after the receipt
of said request.
Section 5. Waiver of Notice. Notice of any stockholders'
meeting may be waived in writing by any stockholder at any time
before or after the meeting.
Section 6. Quorum. At any meeting of the stockholders, 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 constitute a quorum for all purposes, unless
otherwise specified by law or the Articles of Incorporation.
If, however, such majority shall not be present or represented
at any meeting of the stockholders, the stockholders entitled to
vote, present in person or by proxy, shall have power to adjourn
the meeting from time to time without further notice, other than by
announcement at the meeting, until the requisite amount of voting
stock shall be present. At any such adjourned meeting, at which a
quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally called.
Section 7. Voting. At any meeting of the stockholders, every
stockholder having the right to vote shall be entitled to vote in
person, or by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than
eleven (11) months prior to said meeting, unless some other
definite period of validity shall be expressly provided therein.
Each stockholder shall have one (1) vote for each share of
stock having voting power, registered in his name on the books of
the Corporation, at the date fixed for determination of persons
entitled to vote at the meeting, which date shall not exceed forty
(40) days preceding the date of meeting.
A complete list of stockholders entitled to vote at the
stockholders' meetings, arranged in alphabetical order, with the
address and the number of voting shares held by each, shall be
produced on the request of any stockholder, and such list shall be
prima facie evidence of the ownership of shares and of the right of
stockholders to vote, when certified by the Secretary or by the
agent of the Corporation having charge of the transfer of shares.
The list of stockholders shall be delivered to the Inspectors
of Election after their appointment at the meeting.
Section 8. Inspectors of Election. At each meeting of the
stockholders, the presiding officer of the meeting shall appoint
three (3) inspectors of election, who need not be stockholders.
The inspectors shall receive and count the votes, either upon an
election or for the decision of any question, and shall determine
the result. Their certificate of any vote shall be prima facie
evidence thereof.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. The
business and affairs of the Corporation shall be managed and
controlled by a Board of four (4) Directors, who need not be
stockholders. Directors shall be elected annually by the
stockholders at the annual meeting, and each director shall hold
office until his successor shall have been elected and qualified.
Any director may resign at any time. Vacancies occurring in the
Board of Directors shall be filled by the remaining members of the
board. A director thus elected to fill any vacancy shall hold
office for the unexpired term of his predecessor and until his
successor is elected and qualifies. Any director may be removed at
any time by the affirmative vote of a majority of the stock then
issued and entitled to vote at a special meeting of stockholders
called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Delaware) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of all the directors, or by three (3) days
written notice given by the Secretary of the Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Delaware), and upon such notice, as the Board
of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be held at such time and place (either within or
without the State of Delaware) as determined by and may be called
by, the President or any Vice-President or any two (2) members of
the Board of Directors upon at least one hour prior notice.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these By-Laws.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum at all meetings for the transaction of
business.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or of The Cincinnati Gas & Electric Company or any of
its subsidiaries) shall be entitled to receive as compensation for
services such amounts as may be determined from time to time by the
Board of Directors in form either in fees for attendance at the
meeting of the Board of Directors, or by payment at the rate of a
fixed sum per month or both. The same payment may also be made to
any one other than a director officially called to attend any such
meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate
annually three (3) of their number (the President and two (2) other
members of the Board) to constitute an Executive Committee, who to
the extent provided in the resolution, shall exercise in the
intervals between the meetings of the Board of Directors the powers
of the Board in the management of the business and affairs of the
Corporation.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the Board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
consist of a President, one or more Vice-Presidents, a Secretary
and one or more Assistant Secretaries and a Treasurer and one or
more Assistant Treasurers, all of whom shall be elected by the
Board of Directors, and shall hold office for one (1) year and
until their successors are chosen and qualified. The Board of
Directors may, at its option, elect a Chairman of the Board.
Any two or more offices may be held by the same person, except
that the duties of the President and Secretary shall not be
performed by the same person. All vacancies occurring among any of
the above offices shall be filled by the Board of Directors. Any
officer may be removed at any time by the affirmative vote of a
majority of the Board of Directors at a special meeting of the
Board of Directors called for the purpose.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. Chairman of the Board. The Chairman of the Board
of Directors, if there is one elected as herein provided, shall be
a director and shall preside at all meetings of the Board of
Directors and shall, subject to their direction and control, be
their representative and medium of communication, and shall perform
such duties as may from time to time be assigned to him by the
Board of Directors.
Section 4. President and Chief Executive Officer. The
President and Chief Executive Officer shall be a director and shall
be the chief executive officer of the Corporation. He shall
preside at all meetings of the stockholders and Executive Committee
and, in the absence of the Chairman of the Board of Directors, if
there be one, at all meetings of the Board of Directors. He shall
have general and active management of the business of the
Corporation, shall see that all orders and resolutions of the Board
of Directors or Executive Committee are carried into effect, and
shall have general powers and duties of supervision and management
usually vested in the office of President and chief executive
officer of a corporation.
Section 5. Vice-Presidents. The Vice-Presidents shall
perform such duties as the Board of Directors shall, from time to
time, require. In the absence or incapacity of the President, the
Vice-President designated by the President or Board of Directors or
Executive Committee shall exercise the powers and duties of the
President.
Section 6. Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the stockholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose.
He shall see that proper notice is given of all meetings of
the stockholders of the Corporation and of the Board of Directors
and shall perform such other duties as may be prescribed from time
to time by the Board of Directors or by the President.
Assistant Secretaries. At the request of the Secretary, or in
his absence or inability to act, the Assistant Secretary or, if
there be more than one, the Assistant Secretary designated by the
Secretary, shall perform the duties of the Secretary and when so
acting shall have all the
powers of and be subject to all the restrictions of the Secretary.
The Assistant Secretaries shall perform such other duties as may
from time to time be assigned to them by the President, the
Secretary, or the Board of Directors.
Section 7. Treasurer. The Treasurer shall be the financial
officer of the Corporation, shall keep full and accurate accounts
of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuables in the
name and to the credit of the Corporation, in such depositories as
may be directed by the Board of Directors, shall disburse the funds
of the Corporation as may be ordered by the Board of Directors or
by the President, taking proper vouchers therefor, and shall render
to the President and directors at all regular meetings of the Board
of Directors, or whenever they may require it, and to the annual
meeting of the stockholders, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
He shall also perform such other duties as the Board of
Directors may from time to time require.
He shall give a bond for the faithful discharge of his duties
in such sum as the Board of Directors may require.
Assistant Treasurers. At the request of the Treasurer, or in
his absence or inability to act, the Assistant Treasurer or, if
there be more than one, the Assistant Treasurer designated by the
Treasurer, shall perform the duties of the Treasurer and when so
acting shall have all the powers of and be subject to all the
restrictions of the Treasurer. The Assistant Treasurers shall
perform such other duties as may from time to time be assigned to
them by the President, the Treasurer, or the Board of Directors.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Definitions. As used in this Article:
A. "Corporation" includes any domestic or foreign
predecessor entity of the Corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
B. "Director" means an individual who is or was a Director
of the Corporation or an individual who, while a Director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise. A Director shall be
considered to be serving an employee benefit plan at the
Corporation's request if his or her duties to the Corporation also
impose duties on, or otherwise involve services by, him or her to
the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the
estate or personal representative of a Director.
C. "Expenses" include counsel fees.
D. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
E. "Official capacity" means:
(1) When used with respect to a Director, the office of
Director in the Corporation; and
(2) When used with respect to an individual other than a
Director, as contemplated in Section 6, the office in the
Corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
Corporation. "Official capacity" shall not include service for any
other foreign or domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other enterprise.
F. "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
G. "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Section 2. Indemnification.
A. Except as provided in subsection (D) of this Section,
the Corporation shall indemnify an individual made a party to a
proceeding because he or she is or was a Director against liability
incurred in the proceeding if:
(1) He or she conducted himself or herself in good
faith; and
(2) He or she reasonably believed:
(a) In the case of conduct in his or her official
capacity with the Corporation, that his or her conduct was in its
best interest; and
(b) In all other cases, that his or her conduct was
at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he or she
had no reasonable cause to believe his or her conduct was unlawful.
B. A Director's conduct with respect to an employee
benefit plan for a purpose he or she reasonably believed to be in
the interests of the participants in and beneficiaries of the plan
shall be conduct that satisfies the requirement of subsection
A(2)(b) of this Section.
C. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not be, of itself, determinative that the Director
did not meet the standard of conduct described in this Section.
D. The Corporation may not indemnify a Director under this
Section:
(1) In connection with a proceeding by or in the right
of the Corporation in which the Director was adjudged liable to the
Corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him or her, whether or not involving
action in his or her official capacity, in which he or she was
adjudged liable on the basis that personal benefit was improperly
received by him or her.
E. Indemnification permitted under this Section in
connection with a proceeding by or in the right of the Corporation
shall be limited to reasonable expenses incurred in connection with
the proceeding.
Section 3. Mandatory Indemnification. Unless limited by the
Articles of Incorporation, the Corporation shall indemnify a
Director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he or she was a party
because he or she is or was a Director of the Corporation against
reasonable expenses incurred by him or her in connection with the
proceeding.
Section 4. Advance for Expenses.
A. The Corporation may pay for or reimburse the reasonable
expenses incurred by a Director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The Director furnishes the Corporation a written
affirmation of his or her good faith belief that he or she has met
the standard of conduct described in Section 2;
(2) The Director furnishes the Corporation a written
undertaking, executed personally or on his or her behalf, to repay
the advance if it is ultimately determined that he or she did not
meet the standard of conduct; and
(3) A determination is made that the facts then known
to those making the determination would not preclude
indemnification under this article.
B. The undertaking required by subsection A(2) of this
Section shall be an unlimited general obligation of the Director
but shall not be required to be secured and may be accepted without
reference to financial ability to make repayment.
C. Determinations and authorizations of payments under
this Section shall be made in the manner specified in Section 5.
Section 5. Determination and Authorization of
Indemnification.
A. The Corporation shall not indemnify a Director under
Section 2 of this Article unless authorized in the specific case
after a determination has been made that indemnification of the
Director is permissible in the circumstances because he or she has
met the standard of conduct set forth in Section 2.
B. The determination shall be made:
(1) By the Board of Directors by majority vote of a
quorum consisting of Directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subsection
B(1) of this Section, by majority vote of a committee duly
designated by the Board of Directors (in which designation
Directors who are parties may participate), consisting solely of
two or more Directors not at the time parties to the proceeding;
(3) By special legal counsel:
(a) Selected by the Board of Directors or its
committee in the manner prescribed in subsection B(1) and (2) of
this Section; or
(b) If quorum of the Board of Directors cannot
be obtained under subsection B(1) of this Section and a committee
cannot be designated under subsection B(2) of this Section,
selected by majority vote of the full Board of Directors (in which
selection Directors who are parties may participate); or
(4) By the stockholders, but shares owned by or voted
under the control of Directors who are at the time parties to the
proceeding shall not be voted on the determination.
C. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if
the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses
shall be made by those entitled under subsection B(3) of this
Section to select counsel.
Section 6. Indemnification of Officers, Employees, and
Agents. Unless the Corporation's Articles of Incorporation provide
otherwise:
A. An officer of the Corporation who is not a Director
shall be entitled to mandatory indemnification under Section 3, and
is entitled to apply for court-ordered indemnification under the
Kentucky Business Corporation Act, in each case to the same extent
as a Director;
B. The Corporation may indemnify and advance expenses
under this Article to an officer, employee, or agent of the
Corporation who is not a Director to the same extent as to a
Director; and
C. The Corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a Director to the
extent, consistent with public policy, that may be provided by the
Articles of Incorporation, By-Laws, general or specific action of
the Board of Directors, or contract.
Section 7. Insurance. The Corporation may purchase and
maintain insurance on behalf of an individual who is or was a
Director, officer, employee, or agent of the Corporation, or who,
while a Director, officer, employee, or agent of the Corporation,
is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him or her in that capacity or arising from
his or her status as a Director, officer, employee, or agent,
whether or not the Corporation would have power to indemnify him or
her against the same liability under Section 2 or 3.
Section 8. Application of this Article.
A. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the By-Laws, any agreement, vote of stockholders or disinterested
Directors, or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office.
B. This Article shall not limit the Corporation's power to
pay or reimburse expenses incurred by a Director in connection with
his or her appearance as a witness at a proceeding at a time when
he or she has not been made a named defendant or respondent to the
proceeding.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by the
President or a Vice-President and also by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer.
All certificates shall be consecutively numbered. The name and
address of the person owning the shares represented thereby, with
the number of such shares and the date of issue, shall be entered
on the Corporation's books.
Section 2. Transfer of Shares. Shares may be transferred on
the books of the Corporation by the holder in person or by his
attorney, upon the surrender and cancellation of certificates for a
like number of shares.
Section 3. Appointment of Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or printed.
In case any officer designated for the purpose, who has signed
or whose facsimile signature has been used on any such certificate,
shall, from any cause, cease to be such officer before the
certificate has been delivered by the Corporation, the certificate
may nevertheless be adopted by the Corporation and be issued and
delivered as though the person had not ceased to be such officer.
Section 4. Closing of Transfer Books or Taking Record of
Stockholders. The Board of Directors may fix a time not exceeding
forty (40) days preceding the date of any meeting of stockholders
or any dividend payment date or any date for the allotment of
rights as a record date for the determination of the stockholders
entitled to notice of such meeting or to vote thereat or to receive
such dividends or rights as the case may be; or the Board of
Directors may close the books of the Corporation against transfer
of shares during the whole or any part of such period.
Section 5. Lost Stock Certificates. In the case of a lost
stock certificate a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. The Board of Directors of the
Corporation may declare and the Corporation may pay dividends on
its outstanding shares in cash or property or in its own shares, or
may issue its own shares or securities in lieu of unpaid accrued
dividends, but no dividend shall be declared or paid or such issue
made at a time when the Corporation is insolvent or when such
payment or issue would render the Corporation insolvent or would
diminish the amount of the capital of the Corporation.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes may, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by either the President
or a Vice-President. The President, any Vice-President or the
Treasurer may in the name of the Corporation execute checks, drafts
and orders for the payment of money in its behalf singly without
necessity for counter-signature. The Board of Directors may by
resolution adopted at any meeting designate other officers of the
Corporation who may in the name of the Corporation execute checks,
drafts and orders for the payment of money in its behalf and, in
the discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these By-Laws to a stockholder, director or officer
may be given in writing, personally served or through the United
States Mail, or by telephone, telecopy, telegram, cablegram or
radiogram, and such notice shall be deemed to be given at the time
when the same shall be thus transmitted. Any notice required to be
given by these By-Laws may be waived by the person entitled to such
notice.
ARTICLE XI
Corporate Seal
Section 1. Corporate Seal. The corporate seal of the
Corporation shall consist of a metallic stamp, circular in form,
bearing in its center the word "Seal", and on the outer edge the
name of the Corporation.
ARTICLE XII
Amendment
Section 1. Amendment. These By-Laws may be amended or
repealed at any meeting of the stockholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise two-thirds of the
voting power on such proposal.
ARTICLES OF INCORPORATION
OF
CINERGY TECHNOLOGY, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"Cinergy Technology, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To provide energy or functionally related
environmental services and systems to selected foreign or
domestic industrial, consumer or governmental entities;
(b) To enter into joint ventures or partnership
agreements;
(c) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(d) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana, and,
in general, to do and perform any and all things necessary,
covenient or proper for the carrying out or accomplishment of the
objects or purposes specified in this ARTICLE II, or any of them,
or any objects or purposes incidental thereto, and to possess and
enjoy all of the rights, powers, privileges, authority and
immunities which may be granted to bodies corporate under the Act
and the laws of the State of Indiana;
(e) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(f) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(i) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(j) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
Jon D. Noland
Jon D. Noland
DATED: Dec. 10, 1991
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
As Amended August 1, 1995
BY-LAWS
OF
CINERGY TECHNOLOGY, INC.
<PAGE>
BY-LAWS
OF
CINERGY TECHNOLOGY, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the Cinergy Technology,
Inc. shall be at 1000 East Main Street, in the town of
Plainfield, county of Hendricks and state of Indiana; and the
corporation may have such other offices at such other places as
the board of directors may from time to time designate, or as the
business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the president or a vice president, by
the board of directors, or by the shareholders holding of record
such number of the outstanding shares of the corporation as
represents not less than one-fourth of the aggregate number of
votes that would be voted at such meeting if there were voted
thereat all the outstanding shares entitled to vote on the
business proposed to be transacted thereat. All requests for
special meetings of shareholders shall state the time, manner,
place and purpose thereof. Only business within the purpose
stated in such request shall be conducted at such meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The president, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the president, the vice president, if present,
shall so chair. In the event no such officers are present, the
meeting shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the president or
a vice president by causing the secretary or an assistant
secretary to give to each director, either personally or by
telephone, mail or telegraph. Special meetings of the board of
directors shall be called by the president or a vice president in
like manner and on like notice at the written request of at least
two directors. Special meetings of the board of directors may be
held at the principal office of the corporation or at such other
place, within or without the state of Indiana, as shall be
specified in the notice of the meeting, or, if held upon waiver
of notice, as shall be specified in such waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than two of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
president, one or more vice presidents, a general manager, a
secretary, one or more assistant secretaries, a treasurer, one or
more assistant treasurers, and a comptroller. If deemed
advisable by the board of directors, any two or more offices may
be held by the same person, except that the duties of the
president or a vice president shall not be performed by the same
person who performs the duties of secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The president shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the president, the vice president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the president shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by the vice president,
unless otherwise ordered by the board of directors.
SECTION 7. The vice president and general manager shall,
subject to the control of the board of directors and the
president have general supervision over the management and
direction of the affairs of the corporation, and supervision of
all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors or the president. He shall report to
the president. In case of the absence, disability, death,
resignation or removal from office of the vice president and
general manager, the powers and duties of the vice president and
general manager shall, for the time being, devolve upon and be
exercised by the president, unless otherwise ordered by the board
of directors.
SECTION 8. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
secretary, the powers and duties of the secretary shall, for the
time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the president or a vice president.
SECTION 9. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the president or a vice president. In
case of the absence, disability, death, resignation or removal
from office of the secretary, his powers and duties shall, for
the time being, devolve upon such one of the assistant
secretaries as the board of directors, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and he
shall thereupon, during such period, exercise and perform all of
the powers and duties of the secretary, except as may be
otherwise provided by the board of directors, the president or a
vice president.
SECTION 10. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the president and a vice president.
He shall render to the president, a vice president and the
board of directors, at the regular meetings of the board of
directors, or whenever the same shall be required, an account of
all his transactions as treasurer and of the financial condition
of the corporation. He shall give the corporation a bond, if
required by the board of directors, in such an amount and with
such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the president or a vice president.
SECTION 11. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the the president or a vice president. In
case of the absence, disability, death, resignation or removal
from office of the treasurer, his powers and duties shall, for
the time being, devolve upon such one of the assistant treasurers
as the board of directors, the the president, a vice president or
the treasurer may designate, or, if there be but one assistant
treasurer, then upon such assistant treasurer; and he shall
thereupon, during such period, exercise and perform all of the
powers and duties of the treasurer, except as may be otherwise
provided by the board of directors, the president or a vice
president. Each or any assistant treasurer shall likewise give
the corporation a bond, if required by the board of directors, in
such amount and with such surety or sureties as may be ordered by
the board of directors.
SECTION 12. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the comptroller, the powers and duties of the comptroller shall
be delegated by the board of directors, the president or a vice
president.
SECTION 13. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the auditor, the powers and
duties of the auditor shall be delegated by the board of
directors, the president or a vice president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the president or a vice president
and the secretary or an assistant secretary of the corporation.
In any case where such a certificate is also signed by a transfer
agent and a registrar or either of them, the respective
signatures of president or a vice president and of the secretary
or an assistant secretary thereon may be facsimiles, engraved or
printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the president and
a vice president, or any of them, to designate in writing the one
or more officers or other employees authorized to sign such
drafts. To the extent that the board of directors may by
resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the president or a
vice president, and may be (but need not be) attested by the
secretary or an assistant secretary. Notwithstanding the
immediately preceding sentence of this Section 2, written
agreements of this corporation (other than deeds and mortgages
made by this corporation), which pertain to the routine
operations of this corporation and are regularly being made in
the ordinary course of carrying on such operations, may be
executed for and on behalf of this corporation by any officer or
officers of this corporation, or by any other agent or agents of
this corporation, to the extent that such person or persons may,
from time to time, be so authorized to act by either resolution
of the board of directors or by written authorization of an
officer of this corporation who has been authorized by resolution
of the board of directors to execute such written authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the president or a vice president of this corporation, and
said endorsement shall be duly attested by the secretary or an
assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the president of this corporation, if
he be present, or in his absence by the vice president of this
corporation if he be present, or in the absence of such president
by any vice president of this corporation who may be present.
Whenever, in the judgment of the president or a vice president of
this corporation, it is desirable for this corporation to execute
a proxy or give a shareholder's consent in respect of any share
or shares of stock issued by any other corporation and owned by
this corporation, such proxy or consent shall be executed in the
name of this corporation by the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or
repealed, in whole or in part, and new by-laws may be adopted at
any annual, regular or special meeting of the board of directors
by the affirmative vote of a majority of the members of the board
of directors.
ARTICLES OF INCORPORATION
OF
PSI ARGENTINA, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation") pursuant
to the provisions of the Indiana Business Corporation Act as amended
(hereinafter referred to as to the "Act"), execute the following
Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Argentina, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the stock
of other energy, environmental, or functionally related corporations,
and to do every act and thing covered generally by the denomination
"holding company," including the directing of the operations of other
corporations through the ownership of stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production and distribution
facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage in any other lawful energy,
environmental, or functionally related business permitted to a
corporation organized under the Act;
(e) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana or the
United States or its territories, and, in general, to do and perform
any and all things necessary, convenient, or proper for the carrying
out or accomplishment of the objects or purposes specified in this
ARTICLE II, or any of them, or any objects or purposes incidental
thereto, and to possess and enjoy all of the rights, powers,
privileges, authority, and immunities which may be granted to bodies
corporate under the Act and the laws of the State of Indiana;
(f) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage, pledge,
exchange, or otherwise dispose of real and personal property of every
kind, including shares of stock, bonds, debentures, notes, evidences
of indebtedness, and other securities, contracts, or obligations of
any corporation or corporations, association or associations,
partnership or partnerships, foreign or domestic governments or other
legal entities, domestic or foreign, and to pay in whole or in part
in cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property, stocks,
bonds, debentures, notes, evidences of indebtedness, or other
securities, contracts, or obligations, to receive, collect, and
dispose of the interest, dividends, and income arising from the
property, and to possess and exercise in respect of the same, all the
rights, powers, and privileges of ownership, including all voting
powers on any stocks so owned;
(g) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or other
legal entity, domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness, or other securities of which
are held by this Corporation or in which it shall have any interest,
and to do any acts designed to protect, preserve, improve, or enhance
the value of any property at any time held or controlled by this
Corporation or in which it at that time may be interested;
(h) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership, or corporation, foreign or domestic
government, or other legal entity;
(i) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably necessary
for the carrying on of the business of the Corporation;
(j) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or otherwise
dispose of, or encumber, and to aid and subscribe toward the
acquisition, development, or improvement of, or to turn to account,
and convey, real and personal property, of every class and
description, and rights and privileges therein, in the State of
Indiana or elsewhere; and
(k) To buy, lease, or otherwise acquire, so far as
may be permitted by law, the whole or any part of the business, good
will, and assets of any person, firm, association, or corporation
(either foreign or domestic), suitable, convenient, advantageous, or
necessary for the business of the Corporation; and generally, as
principal or agent, to institute, enter into, carry on, assist,
promote, and participate in financial, commercial, mercantile, and
other business, works, contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident Agent
for service of process is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400, Indianapolis,
Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation shall
have the authority to issue shall be 120,000,000 shares, of which
100,000,000 shares shall be Common Stock, without par value, and
20,000,000 shares shall be Preferred Stock, $100 par value. The
designations, relative rights, preferences, qualifications,
limitations, and restrictions (other than voting rights) which shall
attach to said Cumulative Preferred Stock and Common Stock,
respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall have
such designation and such relative rights, preferences,
qualifications, limitations, and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined and
stated by the Board of Directors or a committee thereof in and by the
resolution or resolutions authorizing the issue of shares of such
series. All shares of the Cumulative Preferred Stock shall be of
equal rank and shall be identical, except in respect of the
particulars that may be fixed by the Board of Directors as
hereinafter in this ARTICLE V (B) provided, and in respect of the
voting rights which shall be as provided for in ARTICLE V (B)(iii)
hereof; and each share of each series shall be identical in all
respects with the other shares of such series, except as to the dates
from which dividends thereon shall be cumulative. Shares of
Cumulative Preferred Stock shall be issued only as fully paid and
nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares of
Cumulative Preferred Stock in one or more series, and to determine
and state, by the resolution or resolutions authorizing the issue of
each series of Cumulative Preferred Stock, the designation of such
series and the relative rights (other than voting rights),
preferences, qualifications, limitations, and restrictions of such
series, in respect of the matters set forth in the following
subparagraphs designated (a) to (h), both inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors or
a committee thereof.
(b) The annual rate of dividends payable on shares
of such series and the date from which dividends on all shares of
such series issued prior to the record date for the first dividend on
shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not in
the case of any series be more than one hundred twelve percentum
(112%) of the par value thereof, plus accrued dividends to the date
of redemption.
(e) Whether or not the shares of such series shall
be entitled to the benefits of a sinking fund to be applied to the
purchase or redemption of shares of such series, and if such sinking
fund is to be established, the terms and provisions governing the
operation thereof. Installments for any such sinking fund may be
made payable in priority to any dividends upon any stock of the
Corporation which is junior to the Cumulative Preferred Stock with
respect to preference as to dividends or assets (such stock being
herein commonly referred to as "junior to" or "ranking junior to" the
Cumulative Preferred Stock).
(f) Whether or not the shares of such series shall
be made convertible into or exchangeable for shares of any other
class or of any other series of the same class of shares of the
Corporation, and if made convertible or exchangeable, the conversion
price or prices, or the rates of exchange, and the adjustments, if
any, at which such conversion or exchange may be made.
(g) The amount payable on shares of such series in
the event of any dissolution, liquidation, or winding up of the
affairs of the Corporation, which amount may differ in the case of a
voluntary or involuntary dissolution, liquidation, or winding up of
the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations, and restrictions in respect
of shares of such series, which are not in conflict with the rights
(other than voting rights), preferences, qualifications, limitations,
and restrictions expressly provided in this ARTICLE V (B)(i).
(ii) General Provisions:
The following provisions shall apply to all the Cumulative
Preferred Stock of the Corporation irrespective of series:
(a) The record holders of the Cumulative Preferred
Stock of each series, in preference to the holders of any class of
stock ranking junior to the Cumulative Preferred Stock, shall be
entitled to receive, when and as declared by the Board of Directors,
cash dividends in lawful money of the United States at the rate fixed
for such series, and no more. Such dividends shall be paid to
shareholders of record on the respective dates, not exceeding twenty
(20) days prior to such payment dates, fixed by the Board of
Directors for such purpose. Such dividends shall be cumulative, in
the case of shares of each particular series:
(I) if issued prior to the record date for the
first dividend on shares of such series, then from the date fixed for
the purpose by the Board of Directors as provided in this ARTICLE V
(B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of such
series and terminating at the close of the payment date for such
dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared or
set apart for payment upon, any share of Cumulative Preferred Stock
of any series for any quarterly dividend period unless at the same
time a like proportionate dividend for the same quarterly dividend
period, ratably in proportion to the respective annual dividend rates
fixed therefor, shall be paid upon, or declared and set apart for
payment upon, all shares of Cumulative Preferred Stock of all series
then issued and outstanding and entitled to receive such dividend.
In no event, so long as any shares of Cumulative Preferred Stock
shall be outstanding, shall any dividend, whether in cash or
property, be paid or declared, or shall any distribution be made on
any class of stock of the Corporation ranking junior to the
Cumulative Preferred Stock, or shall any shares of any such junior
stock be purchased, redeemed, or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred Stock
of all series for all past quarterly dividend periods and for the
current dividend period shall have been paid or declared and a sum
sufficient for the payment thereof set apart for payment. The
provisions of the immediately preceding sentence shall not, however,
apply to a dividend with respect to any such junior stock, payable in
any class of stock ranking junior to the Cumulative Preferred Stock,
or to the acquisition of shares of any such junior stock in exchange
for, or through application of the proceeds of the sale of, shares of
any such junior stock. Subject to the foregoing and to the
provisions of ARTICLE V (C), and to any further limitations
prescribed in accordance with the provisions of subdivision (i)(h)
under "Grant of Authority to Board of Directors" in this ARTICLE V
(B), the Board of Directors may declare, out of any funds legally
available therefor, dividends upon the then outstanding shares of any
class of stock ranking junior to the Cumulative Preferred Stock, and
no holders of shares of Cumulative Preferred Stock of any series
shall be entitled to share therein.
(b) In the event of any dissolution, liquidation,
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class of
stock ranking junior to the Cumulative Preferred Stock, the holders
of the Cumulative Preferred Stock shall be entitled to be paid in
full the respective amounts fixed in accordance with the provisions
of subdivision (i)(g) under "Grant of Authority to Board of
Directors" in this ARTICLE V (B), together with a sum, in the case of
each share, computed at the annual dividend rate for the series of
which the particular share is a part, from the date on which
dividends on such shares became cumulative to and including the date
fixed for such distribution or payment, less the aggregate amount of
all dividends which have theretofore been paid thereon or for which
moneys for payment in full have been set apart and remain available
for payment. If such payment shall have been made in full to the
holders of the Cumulative Preferred Stock, or moneys made available
for such payment in full, the remaining assets and funds of the
Corporation shall be distributed among the holders of the classes of
stock ranking junior to the Cumulative Preferred Stock, according to
their respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation, or
winding up of the affairs of the Corporation, the assets available
are not sufficient to pay in full the amounts so payable to the
holders of all outstanding shares of Cumulative Preferred Stock, the
holders of all series of Cumulative Preferred Stock shall share
ratably in any distribution of assets in proportion to the full
amounts to which they would otherwise be respectively entitled. A
consolidation, merger, or reorganization of the Corporation with any
other corporation or corporations, or a reorganization of the
Corporation alone, or a sale of all or substantially all of the
assets of the Corporation, shall not be considered a dissolution,
liquidation, or winding up of the Corporation within the meaning of
these provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or from
time to time, at the applicable redemption price for such series
fixed in accordance with the provisions of subdivision (i)(d) under
"Grant of Authority to Board of Directors" in this ARTICLE V (B),
together with an amount (hereinafter referred to as "accrued
dividends to the redemption date") in the case of each share,
computed at the annual dividend rate for the series of which the
particular share is a part, from the date on which dividends on such
share became cumulative to and including the date of redemption, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been set
apart and remain available for payment. If less than all the
outstanding shares of Cumulative Preferred Stock of any series are to
be redeemed, the shares to be redeemed shall be determined by lot in
such manner as the Board of Directors may prescribe. Notice of every
redemption of Cumulative Preferred Stock shall specify (a) the date
of redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the outstanding
Cumulative Preferred Stock of such series is called for redemption,
appropriate specifications of the shares to be redeemed as determined
by the Board of Directors, (d) the place of redemption of such
series, and (e) the redemption price of the shares to be redeemed.
Copies of such notice shall be mailed, addressed to the holders of
record of the shares to be redeemed at their respective addresses as
they shall appear on the stock books of the Corporation (but no
failure to mail such notice or any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such
redemption), and such notice shall also be published once each week
for at least two successive weeks (in each case on any business day
of the week) in one daily newspaper printed in the English language
and published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English language
and published and of general circulation in the Borough of Manhattan,
The City of New York, State of New York, the first publication in
each such newspaper and such mailing to be at least thirty (30) days
and not more than sixty (60) days prior to the date fixed for
redemption. If notice of redemption shall have been duly published
and if, on or before the redemption date specified in the notice, all
funds necessary for the redemption shall have been deposited in trust
with a bank or trust company of the character described in the
immediately succeeding sentence and designated in the notice of
redemption, for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and continue to be available
therefor, then, from and after the date of redemption so designated,
notwithstanding that any certificate for shares of Cumulative
Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby shall no
longer be deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of Cumulative
Preferred Stock so called for redemption shall forthwith on the
redemption date cease and terminate, except only the right of the
holders thereof to receive the redemption price of the shares so
redeemed, including accrued dividends to the redemption date, but
without interest. The Corporation may also, at any time prior to the
redemption date specified in the notice of redemption, deposit in
trust, for the account of the holders of the Cumulative Preferred
Stock to be redeemed, with a bank or trust company in good standing,
organized under the laws of the United States of America or of the
State of Illinois, doing business in the City of Chicago, Illinois,
having capital, surplus and undivided profits aggregating at least
two million dollars ($2,000,000), designated in the notice of
redemption, all funds necessary for the redemption, and deliver
irrevocable written instructions authorizing such bank or trust
company, on behalf and at the expense of the Corporation, to cause
notice of redemption to be duly mailed and publication of the notice
to be made as herein provided promptly upon receipt of such
irrevocable instructions. Thereupon, notwithstanding that any
certificate for shares of Cumulative Preferred Stock so called for
redemption shall not have been surrendered for cancellation, all
shares of Cumulative Preferred Stock with respect to which the
deposit shall have been made shall no longer be deemed to be
outstanding, and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease and
terminate except only the right of the holders thereof to receive
from such bank or trust company, at any time after the time of the
deposit, the redemption price, including accrued dividends to the
redemption date, but without interest, of the shares so to be
redeemed, and the right to exercise, on or before the date fixed for
redemption, privileges of conversation or exchange, if any, not
theretofore expiring. Any moneys deposited by the Corporation
pursuant to this subparagraph (ii)(c) which shall not be required for
the redemption because of the exercise of any such right of
conversion or exchange subsequent to the date of the deposit shall be
repaid to the Corporation forthwith. Any other moneys deposited by
the Corporation pursuant to this subparagraph (ii)(c) and unclaimed
at the end of six years from the date fixed for redemption shall be
repaid to the Corporation upon its request expressed in a resolution
of its Board of Directors, after which repayment the holders of the
shares so called for redemption shall look only to the Corporation
for the payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock having a
par value of $100.00 per share shall be entitled to one vote for each
share of such stock so held by him, subject, however, to the
following provisions of this ARTICLE V (B)(iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative Preferred
Stock (given at an annual or special meeting) in such number of votes
as is at least two-thirds of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be voted at
such meeting if all the then outstanding Cumulative Preferred Stock
were there voted:
(I) Create, authorize, or issue shares of
stock of any class ranking prior to the Cumulative Preferred Stock as
to dividends or assets or any securities of any kind or class
convertible into shares of stock of any class ranking prior to the
Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a parity
with the Cumulative Preferred Stock as to dividends or assets or
securities convertible into shares of the Cumulative Preferred Stock
or stock on a parity therewith, other than in exchange for or for the
purpose of effecting the retirement, by redemption or otherwise, of
not less than a like number of shares of the Cumulative Preferred
Stock or shares of stock on a parity therewith or securities
convertible into not less than a like number of such shares, as the
case may be, at the time outstanding, unless:
(A) the Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into such shares are proposed to
be issued, shall have been at least one and one-half times the
aggregate of (x) the dividend requirements for a twelve months'
period upon all shares of the Cumulative Preferred Stock and stock,
if any, ranking prior to or on a parity with the Cumulative Preferred
Stock as to dividends or assets, to be outstanding after the issuance
of the shares or convertible securities proposed to be issued, and
(y) the interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the issuance
of the shares or convertible securities proposed to be issued, and
(B) the Common Stock Equity shall be not
less than the aggregate amount payable on involuntary dissolution,
liquidation, or winding up of the Corporation upon all shares of the
Cumulative Preferred Stock and stock, if any, ranking prior thereto
or on a parity therewith, to be outstanding after the issuance of the
shares or convertible securities proposed to be issued; or
(III) Amend the provisions of these Articles of
Incorporation so as to affect adversely any of the preferences or
other rights hereby given to the holders of shares of the Cumulative
Preferred Stock, provided, however, that if any such amendment would
be adverse to the holders of one or more, but less than all, of the
series of the Cumulative Preferred Stock at the time outstanding, the
affirmative vote hereby required shall be only the affirmative vote
by the record holders of each series so adversely affected in such
number of votes from each such series as is at least two-thirds of
the aggregate number of votes appertaining to such series that would
be voted at such meeting if all the then outstanding shares of such
series were there voted.
No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at or prior to the time when
such amendment, alteration, or repeal is to take effect or when the
issuance of any such stock or convertible securities is to be made,
as the case may be, provision is to be made for the redemption of all
shares of Cumulative Preferred Stock at the time outstanding or, in
the case of any such amendment, alteration, or repeal as to which the
consent of less than all series of the Cumulative Preferred Stock
would otherwise be required, for the redemption of all shares of the
series of Cumulative Preferred Stock the consent of which would
otherwise be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative Preferred
Stock (given at an annual or special meeting) in such number of votes
as is a majority of the aggregate number of votes appertaining to the
Cumulative Preferred Stock that would be voted at such meeting if all
the then outstanding Cumulative Preferred Stock were there voted,
merge or consolidate the Corporation with or into any other
corporation, merge any other corporation into the Corporation, or
sell all or substantially all of the assets of the Corporation,
unless such merger, consolidation, or sale, or the issuance or
assumption of all securities to be issued or assumed in connection
therewith, shall have been ordered, approved, or permitted by the
Securities and Exchange Commission under the Public Utility Holding
Company Act of 1935, or by any successor commission or other
regulatory authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative Preferred
Stock shall be required if, at the time of or prior to effecting such
sale, lease, conveyance, consolidation, or merger, provision is to be
made for the redemption of all shares of Cumulative Preferred Stock
at the time outstanding.
(d) Except when some mandatory provisions of law
shall be controlling, whenever shares of two or more series of the
Cumulative Preferred Stock are outstanding, no particular series of
the Cumulative Preferred Stock shall be entitled to vote as a
separate series on any matter and all shares of the Cumulative
Preferred Stock of all series shall be deemed to constitute but one
class for any purpose for which a vote of the shareholders of the
Corporation by classes may now or hereafter be required.
(e) For the purpose of ARTICLE V (c) of these
Articles of Incorporation, the Corporation shall not declare any
dividend or make any distribution in request of any stock of this
Corporation ranking junior to the Cumulative Preferred Stock as to
dividends or assets, other than dividends in shares of junior stock,
or purchase or otherwise acquire for value any outstanding shares of
junior stock (each such dividend, distribution, purchase, or
acquisition being herein called a junior stock dividend) in
contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or as a
result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends in
an amount which, together with all other dividends on the Common
Stock paid within the year ending with and including the date on
which such dividend is payable, exceeds 50% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar month
in which such dividends are declared, except in an amount not
exceeding the aggregate of dividends on the Common Stock which under
the restrictions set forth above in this subdivision (1) could have
been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less than
20% of Total Capitalization, the Corporation shall not declare
dividends on the Common Stock in an amount which, together with all
other dividends on the Common Stock paid within the year ending with
and including the date on which such dividend is payable, exceeds 75%
of the Net Income of the Corporation Available for Dividends on the
Common Stock for the twelve full calendar months immediately
preceding the calendar month in which such dividends are declared,
except in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in
subdivision (1) and in this subdivision (2) could have been, and have
not been, declared.
(b) As used herein, "Common Stock Equity" shall
mean the aggregate of the par value of, or stated capital represented
by, the outstanding shares of Common Stock, all earned surplus,
capital, or paid-in surplus, and any premiums on the Common Stock
then carried on the books of the Corporation, less:
(1) The excess, if any, of the aggregate
amount payable on involuntary liquidation of the Corporation upon all
outstanding shares of Cumulative Preferred Stock of the Corporation
of all classes over the sum of (i) the aggregate par or stated value
of such shares and (ii) any premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on the
asset side of the balance sheet of the Corporation as the result of
accounting convention, such as unamortized debt discount and expense;
provided, however, that no deductions shall be required to be made in
respect of items referred to in subdivisions (2) and (3) of this
paragraph (b) in cases in which such items are being amortized or are
provided for, or are being provided for, by reserves.
(c) As used herein "Total Capitalization" shall
mean the aggregate of:
(1) The principal amount of all outstanding
indebtedness of the Corporation maturing more than twelve months
after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes of
the capital stock of the Corporation, earned surplus, and capital or
paid-in surplus, less any amounts required to be deducted pursuant to
subdivisions (2) and (3) of paragraph (b) above in the determination
of Common Stock Equity.
(3) The term "Net Income of the Corporation
Available for Dividends on the Common Stock" for any twelve-month
period shall mean the Net Earnings of the Corporation Available for
the Payment of Interest Charges for such period, less interest
charges, amortization charges, other proper income deductions, and
dividends, paid or accrued, on all outstanding shares of stock of the
Corporation having a preference as to dividends over the Common Stock
for such period, all as shall be determined in accordance with such
system of accounts as may be prescribed by governmental authorities
having jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the provisions
of Section B of this ARTICLE V), if any, shall have been met and
after the Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the
provisions of Section B of this ARTICLE V) and subject further to any
other conditions which may be fixed in accordance with the provisions
of Section B of this ARTICLE V, then, but not otherwise, the holders
of Common Stock shall be entitled to receive such dividends, if any,
as may be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of this
ARTICLE V), if any, to be distributed to the holders of Preferred
Stock in the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up of the
Corporation, the holders of the Common Stock shall be entitled to
receive all the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
shareholders, ratably in proportion to the number of shares of Common
Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have one
vote in respect of each share of Common Stock held by such holder on
each matter voted upon by the shareholders and any such right to vote
shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such terms
and for such consideration as shall be fixed by the Board of
Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants, or other rights to
purchase or acquire shares of any class or series of stock or of
other securities of the Corporation shall have any preemptive right
to purchase, acquire, or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of
the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures, or other securities convertible into or
exchangeable for stock of any class or series, or carrying any right
to purchase or acquire stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase or acquire stock, may be
issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations, or associations, and
upon such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change, or
repeal any provision contained in the Articles of Incorporation, or
in any amendment thereto, in the manner now or hereafter prescribed
by law, but subject to such conditions and limitations as are
hereinbefore prescribed, and all rights conferred upon shareholders
in the Articles of Incorporation of this Corporation, or any
amendment thereto, are granted subject to this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold, and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year in
which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in the
By-laws, disqualification, or removal from office. Any vacancy on
the Board of Directors that results from other than an increase in
the number of directors may be filled by a majority of the Board of
Directors then in office even if less than a quorum, or by a sole
remaining director. The term of any director elected by the Board of
Directors to fill a vacancy not resulting from an increase in the
number of directors shall expire at the next shareholders' meeting at
which directors are elected, and the remainder of such term, if any,
shall be filled by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the Board of Directors if such person
shall have attained the age of seventy years in the calendar year
preceding the date of such election, reelection or appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of the
Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield,
Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted by law
against expenses (including attorneys' fees), judgments, penalties,
fines, and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the defense of any
proceeding in which he or she was or is a party or is threatened to
be made a party by reason of being or having been a director or an
officer of the Corporation. Such right of indemnification is not
exclusive of any other rights to which such director or officer may
be entitled under any now or hereafter existing statute, any other
provision of these Articles, By-laws, agreement, vote of shareholders
or otherwise. If the Act of the State of Indiana is amended after
approval by the shareholders of this ARTICLE VIII to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Act of the State of Indiana, as so amended. Any
repeal or modification of this ARTICLE VIII by the shareholders of
the Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal or
modification.
Incorporator
/s/ Cheryl M. Foley
Cheryl M. Foley
DATED: April 10, 1992
This instrument
prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main
Street
Plainfield, Indiana
46168
ARTICLES OF INCORPORATION
OF
COSTANERA POWER CORP.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"), execute
the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"Costanera Power Corp."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the
stock of other energy, environmental, or functionally related
corporations, and to do every act and thing covered generally by
the denomination "holding company," including the directing of
the operations of other corporations through the ownership of
stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage into joint ventures or
partnership agreements;
(e) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(f) To carry on the business of the
Corporation either within or beyond the limits of the State of
Indiana or the United States or its territories, and, in general,
to do and perform any and all things necessary, convenient, or
proper for the carrying out or accomplishment of the objects or
purposes specified in this ARTICLE II, or any of them, or any
objects or purposes incidental thereto, and to possess and enjoy
all of the rights, powers, privileges, authority, and immunities
which may be granted to bodies corporate under the Act and the
laws of the State of Indiana;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, foreign or domestic governments or other legal
entities, domestic or foreign, and to pay in whole or in part in
cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property,
stocks, bonds, debentures, notes, evidences of indebtedness, or
other securities, contracts, or obligations, to receive, collect,
and dispose of the interest, dividends, and income arising from
the property, and to possess and exercise in respect of the same,
all the rights, powers, and privileges of ownership, including
all voting powers on any stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or
other legal entity, domestic or foreign, any shares of stock, or
any bonds, debentures, evidences of indebtedness, or other
securities of which are held by this Corporation or in which it
shall have any interest, and to do any acts designed to protect,
preserve, improve, or enhance the value of any property at any
time held or controlled by this Corporation or in which it at
that time may be interested;
(i) To enter into, make, perform, and carry
out contracts of any kind for any lawful purpose with any
individual, association, partnership, or corporation, foreign or
domestic government, or other legal entity;
(j) To purchase, acquire, lease, own, and
enjoy any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development, or improvement of, or to
turn to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so
far as may be permitted by law, the whole or any part of the
business, good will, and assets of any person, firm, association,
or corporation (either foreign or domestic), suitable,
convenient, advantageous, or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote, and participate in
financial, commercial, mercantile, and other business, works,
contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Cheryl M. Foley, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations, and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations, and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B)(iii) hereof; and each share of each series shall be
identical in all respects with the other shares of such series,
except as to the dates from which dividends thereon shall be
cumulative. Shares of Cumulative Preferred Stock shall be issued
only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations, and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the
number of shares which shall constitute such series, which number
may be varied from time to time by like action of the Board of
Directors or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such
series in the event of any dissolution, liquidation, or winding
up of the affairs of the Corporation, which amount may differ in
the case of a voluntary or involuntary dissolution, liquidation,
or winding up of the affairs of the Corporation.
(h) Any other rights (other than voting
rights), preferences, qualifications, limitations, and
restrictions in respect of shares of such series, which are not
in conflict with the rights (other than voting rights),
preferences, qualifications, limitations, and restrictions
expressly provided in this ARTICLE V (B)(i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed, or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i)(h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution,
liquidation, or winding up of the affairs of the Corporation,
then, before any distribution or payment shall be made to the
holders of any class of stock ranking junior to the Cumulative
Preferred Stock, the holders of the Cumulative Preferred Stock
shall be entitled to be paid in full the respective amounts fixed
in accordance with the provisions of subdivision (i)(g) under
"Grant of Authority to Board of Directors" in this ARTICLE V (B),
together with a sum, in the case of each share, computed at the
annual dividend rate for the series of which the particular share
is a part, from the date on which dividends on such shares became
cumulative to and including the date fixed for such distribution
or payment, less the aggregate amount of all dividends which have
theretofore been paid thereon or for which moneys for payment in
full have been set apart and remain available for payment. If
such payment shall have been made in full to the holders of the
Cumulative Preferred Stock, or moneys made available for such
payment in full, the remaining assets and funds of the
Corporation shall be distributed among the holders of the classes
of stock ranking junior to the Cumulative Preferred Stock,
according to their respective rights and preferences and in each
case according to their respective shares. If, upon any
dissolution, liquidation, or winding up of the affairs of the
Corporation, the assets available are not sufficient to pay in
full the amounts so payable to the holders of all outstanding
shares of Cumulative Preferred Stock, the holders of all series
of Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which
they would otherwise be respectively entitled. A consolidation,
merger, or reorganization of the Corporation with any other
corporation or corporations, or a reorganization of the
Corporation alone, or a sale of all or substantially all of the
assets of the Corporation, shall not be considered a dissolution,
liquidation, or winding up of the Corporation within the meaning
of these provisions.
(c) The Cumulative Preferred Stock of any
series may be redeemed, as a whole or in part, at the option of
the Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision
(i)(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which moneys for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption), and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversation or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii)(c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii)(c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B)(iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize, or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the
Corporation Available for the Payment of Interest Charges for any
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the month within which such
additional shares of the Cumulative Preferred Stock or shares of
stock on a parity therewith or securities convertible into such
shares are proposed to be issued, shall have been at least one
and one-half times the aggregate of (x) the dividend requirements
for a twelve months' period upon all shares of the Cumulative
Preferred Stock and stock, if any, ranking prior to or on a
parity with the Cumulative Preferred Stock as to dividends or
assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the
interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the
issuance of the shares or convertible securities proposed to be
issued, and
(B) the Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation, or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration, or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration, or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation, or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved, or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation, or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase, or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital, or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity.
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to
preferential dividends on Preferred Stock (fixed in accordance
with the provisions of Section B of this ARTICLE V), if any,
shall have been met and after the Corporation shall have complied
with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of Section B of this
ARTICLE V) and subject further to any other conditions which may
be fixed in accordance with the provisions of Section B of this
ARTICLE V, then, but not otherwise, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or
these Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held
by such holder on each matter voted upon by the shareholders and
any such right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants, or other
rights to purchase or acquire shares of any class or series of
stock or of other securities of the Corporation shall have any
preemptive right to purchase, acquire, or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures, or
other securities convertible into or exchangeable for stock of
any class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations, or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change,
or repeal any provision contained in the Articles of
Incorporation, or in any amendment thereto, in the manner now or
hereafter prescribed by law, but subject to such conditions and
limitations as are hereinbefore prescribed, and all rights
conferred upon shareholders in the Articles of Incorporation of
this Corporation, or any amendment thereto, are granted subject
to this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold, and dispose of any shares of its stock of any
class heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification, or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Cheryl M. Foley
Cheryl M. Foley
DATED: April 10, 1992
This instrument
prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main
Street
Plainfield,
Indiana 46168
ARTICLES OF INCORPORATION
OF
COSTANERA POWER CORP.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"), execute
the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"Costanera Power Corp."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the
stock of other energy, environmental, or functionally related
corporations, and to do every act and thing covered generally by
the denomination "holding company," including the directing of
the operations of other corporations through the ownership of
stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage into joint ventures or
partnership agreements;
(e) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(f) To carry on the business of the
Corporation either within or beyond the limits of the State of
Indiana or the United States or its territories, and, in general,
to do and perform any and all things necessary, convenient, or
proper for the carrying out or accomplishment of the objects or
purposes specified in this ARTICLE II, or any of them, or any
objects or purposes incidental thereto, and to possess and enjoy
all of the rights, powers, privileges, authority, and immunities
which may be granted to bodies corporate under the Act and the
laws of the State of Indiana;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, foreign or domestic governments or other legal
entities, domestic or foreign, and to pay in whole or in part in
cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property,
stocks, bonds, debentures, notes, evidences of indebtedness, or
other securities, contracts, or obligations, to receive, collect,
and dispose of the interest, dividends, and income arising from
the property, and to possess and exercise in respect of the same,
all the rights, powers, and privileges of ownership, including
all voting powers on any stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or
other legal entity, domestic or foreign, any shares of stock, or
any bonds, debentures, evidences of indebtedness, or other
securities of which are held by this Corporation or in which it
shall have any interest, and to do any acts designed to protect,
preserve, improve, or enhance the value of any property at any
time held or controlled by this Corporation or in which it at
that time may be interested;
(i) To enter into, make, perform, and carry
out contracts of any kind for any lawful purpose with any
individual, association, partnership, or corporation, foreign or
domestic government, or other legal entity;
(j) To purchase, acquire, lease, own, and
enjoy any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development, or improvement of, or to
turn to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so
far as may be permitted by law, the whole or any part of the
business, good will, and assets of any person, firm, association,
or corporation (either foreign or domestic), suitable,
convenient, advantageous, or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote, and participate in
financial, commercial, mercantile, and other business, works,
contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Cheryl M. Foley, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations, and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations, and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B)(iii) hereof; and each share of each series shall be
identical in all respects with the other shares of such series,
except as to the dates from which dividends thereon shall be
cumulative. Shares of Cumulative Preferred Stock shall be issued
only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations, and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the
number of shares which shall constitute such series, which number
may be varied from time to time by like action of the Board of
Directors or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such
series in the event of any dissolution, liquidation, or winding
up of the affairs of the Corporation, which amount may differ in
the case of a voluntary or involuntary dissolution, liquidation,
or winding up of the affairs of the Corporation.
(h) Any other rights (other than voting
rights), preferences, qualifications, limitations, and
restrictions in respect of shares of such series, which are not
in conflict with the rights (other than voting rights),
preferences, qualifications, limitations, and restrictions
expressly provided in this ARTICLE V (B)(i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed, or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i)(h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution,
liquidation, or winding up of the affairs of the Corporation,
then, before any distribution or payment shall be made to the
holders of any class of stock ranking junior to the Cumulative
Preferred Stock, the holders of the Cumulative Preferred Stock
shall be entitled to be paid in full the respective amounts fixed
in accordance with the provisions of subdivision (i)(g) under
"Grant of Authority to Board of Directors" in this ARTICLE V (B),
together with a sum, in the case of each share, computed at the
annual dividend rate for the series of which the particular share
is a part, from the date on which dividends on such shares became
cumulative to and including the date fixed for such distribution
or payment, less the aggregate amount of all dividends which have
theretofore been paid thereon or for which moneys for payment in
full have been set apart and remain available for payment. If
such payment shall have been made in full to the holders of the
Cumulative Preferred Stock, or moneys made available for such
payment in full, the remaining assets and funds of the
Corporation shall be distributed among the holders of the classes
of stock ranking junior to the Cumulative Preferred Stock,
according to their respective rights and preferences and in each
case according to their respective shares. If, upon any
dissolution, liquidation, or winding up of the affairs of the
Corporation, the assets available are not sufficient to pay in
full the amounts so payable to the holders of all outstanding
shares of Cumulative Preferred Stock, the holders of all series
of Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which
they would otherwise be respectively entitled. A consolidation,
merger, or reorganization of the Corporation with any other
corporation or corporations, or a reorganization of the
Corporation alone, or a sale of all or substantially all of the
assets of the Corporation, shall not be considered a dissolution,
liquidation, or winding up of the Corporation within the meaning
of these provisions.
(c) The Cumulative Preferred Stock of any
series may be redeemed, as a whole or in part, at the option of
the Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision
(i)(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which moneys for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption), and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversation or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii)(c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii)(c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B)(iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize, or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the
Corporation Available for the Payment of Interest Charges for any
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the month within which such
additional shares of the Cumulative Preferred Stock or shares of
stock on a parity therewith or securities convertible into such
shares are proposed to be issued, shall have been at least one
and one-half times the aggregate of (x) the dividend requirements
for a twelve months' period upon all shares of the Cumulative
Preferred Stock and stock, if any, ranking prior to or on a
parity with the Cumulative Preferred Stock as to dividends or
assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the
interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the
issuance of the shares or convertible securities proposed to be
issued, and
(B) the Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation, or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration, or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration, or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii)(c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation, or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved, or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation, or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase, or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital, or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity.
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to
preferential dividends on Preferred Stock (fixed in accordance
with the provisions of Section B of this ARTICLE V), if any,
shall have been met and after the Corporation shall have complied
with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of Section B of this
ARTICLE V) and subject further to any other conditions which may
be fixed in accordance with the provisions of Section B of this
ARTICLE V, then, but not otherwise, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or
these Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held
by such holder on each matter voted upon by the shareholders and
any such right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants, or other
rights to purchase or acquire shares of any class or series of
stock or of other securities of the Corporation shall have any
preemptive right to purchase, acquire, or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures, or
other securities convertible into or exchangeable for stock of
any class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations, or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change,
or repeal any provision contained in the Articles of
Incorporation, or in any amendment thereto, in the manner now or
hereafter prescribed by law, but subject to such conditions and
limitations as are hereinbefore prescribed, and all rights
conferred upon shareholders in the Articles of Incorporation of
this Corporation, or any amendment thereto, are granted subject
to this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold, and dispose of any shares of its stock of any
class heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification, or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Cheryl M. Foley
Cheryl M. Foley
DATED: April 10, 1992
This instrument
prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main
Street
Plainfield,
Indiana 46168
BY-LAWS
OF
COSTANERA POWER CORP.
<PAGE>
BY-LAWS
OF
COSTANERA POWER CORP.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the Costanera Power
Corp. shall be at 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204; and the corporation may have such
other offices at such other places as the board of directors may
from time to time designate, or as the business of the
corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the city of Indianapolis,
Indiana, or at such other place within or outside the state of
Indiana through the use of any means of communication by which
all shareholders participating may simultaneously hear each other
at the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in the shareholder's name on the books of the
corporation, except as otherwise provided by law or by the
articles of incorporation and except that no shares shall be
voted at any meeting upon which any installment is due and
unpaid, or which belongs to the corporation, or which shall have
been transferred on the books of the corporation within such
number of days, not exceeding seventy, next preceding the date of
such meeting as the board of directors shall determine, or, in
the absence of such determination, within ten days next preceding
the date of such meeting. At any adjourned meeting of
shareholders, the board of directors shall fix a record date for
shareholders entitled to vote at such adjourned meeting which
must be a new date if the meeting is adjourned for more than one
hundred twenty days.
A plurality vote shall be sufficient to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote at such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by an inspector,
(ii) where voting is to be by ballot on any question, the polls
shall be opened and closed and the ballots shall be taken in
charge by such inspector, and (iii) all questions touching the
qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by such
inspector. Such inspector may be appointed by the board of
directors before such meeting, or, if no such appointment shall
have been made, then by the presiding officer at such meeting.
In the event for any reason the inspector previously appointed
shall fail to attend such meeting, or being present will not or
cannot act in such capacity, then an inspector in place of such
inspector failing to attend or not acting shall be appointed by
the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the person
to act as inspector at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided however, that nothing in this Article II shall be deemed
to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and any such business not properly brought
before the annual meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and the defective nomination shall be
disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than two (2) nor more than nine (9) directors. A director shall
hold office until the annual meeting for the year in which the
director's term expires and until the director's successor shall
be elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in these by-laws, disqualification or removal from
office. Any vacancy on the board of directors that results from
other than an increase in the number of directors may be filled
by a majority of the board of directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the board of directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. The chairman shall,
when present, preside at all meetings of the shareholders and, in
the absence of the chairman, the president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the chairman shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
chairman, the powers and duties of the chairman shall, for the
time being, devolve upon and be exercised by the president,
unless otherwise ordered by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for the
president by the board of directors or the chairman. The
president shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by a vice president,
unless otherwise ordered by the board of directors or the
chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. The
vice president and general manager shall, subject to the other
provisions of these by-laws, have such other powers and perform
such other duties as usually devolve upon the vice president and
general manager of a corporation, and such further duties as may
be prescribed for the president and general manager by the board
of directors, the chairman or the president. The vice president
and general manager shall report to the chairman. In case of the
absence, disability, death, resignation or removal from office of
the vice president and general manager, the powers and duties of
the vice president and general manager shall, for the time being,
devolve upon and be exercised by the president, unless otherwise
ordered by the board of directors, the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the secretary, the powers and duties of the secretary shall, for
the time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the chairman, the president or a vice president.
SECTION 10. Each of the assistant secretaries shall assist
in the secretarial duties and shall have such other powers and
duties as may be prescribed for such assistant secretary by the
board of directors, or be delegated to such assistant secretary
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the secretary, those powers and duties shall, for the
time being, devolve upon such one of the assistant secretaries as
the board of directors, the chairman, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and such
assistant secretary shall thereupon, during such period, exercise
and perform all of the powers and duties of the secretary, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. The
treasurer shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. The
treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper receipts or
making proper vouchers for such disbursements and shall preserve
the same at all times during the treasurer's term of office.
When necessary or proper, the treasurer shall endorse on behalf
of the corporation all checks, notes or other obligations payable
to the corporation or coming into the treasurer's possession for
or on behalf of the corporation and shall deposit the funds
arising therefrom together with all other funds and valuable
effects of the corporation coming into the treasurer's possession
in the name and to the credit of the corporation in such
depositories as the board of directors from time to time, by
resolution, shall direct. The treasurer shall have such other
powers and duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
The treasurer shall render to the chairman, president, a
vice president and the board of directors, at the regular
meetings of the board of directors, or whenever the same shall be
required, an account of all the treasurer's transactions as
treasurer and of the financial condition of the corporation. The
treasurer shall give the corporation a bond, if required by the
board of directors, in such an amount and with such surety or
sureties as may be ordered by the board, for the faithful
performance of the duties of the treasurer's office and for the
restoration to the corporation, in case of the treasurer's death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
the treasurer's possession or under the treasurer's control
belonging to the corporation.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
in the duties of the treasurer, and shall have such other powers
and duties as may be prescribed for the assistant treasurer by
the board of directors or be delegated to the assistant treasurer
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the treasurer, those powers and duties shall, for the
time being, devolve upon such one of the assistant treasurers as
the board of directors, the chairman, the president, a vice
president or the treasurer may designate, or, if there be but one
assistant treasurer, then upon such assistant treasurer; and such
assistant treasurer shall thereupon, during such period, exercise
and perform all of the powers and duties of the treasurer, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president. Each or any
assistant treasurer shall likewise give the corporation a bond,
if required by the board of directors, in such amount and with
such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. The comptroller shall have
executive direction of the bookkeeping and accounting departments
and shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. The comptroller shall have such other powers and
duties as are incident to the office of comptroller of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the comptroller, the powers
and duties of the comptroller shall be delegated by the board of
directors, the chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. The auditor shall examine the
accounts of all officers and employees from time to time, as
often as practicable and shall see that proper returns are made
of all receipts from all sources and that correct vouchers are
provided for disbursements for any purpose. The auditor shall
have such other powers and duties as are commonly incident to the
office of auditor of a corporation, subject at all times to the
direction and control of the board of directors, the chairman,
the president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of the shareholder's
shares, shall be kept at the principal office of the corporation
in the state of Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if
the chairman be present, or in the chairman's absence by the
president of this corporation if the president be present, or in
the absence of both such chairman and such president by any vice
president of this corporation who may be present. Whenever, in
the judgment of the chairman, the president or a vice president
of this corporation, it is desirable for this corporation to
execute a proxy or give a shareholder's consent in respect of any
share or shares of stock issued by any other corporation and
owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the chairman, the
president or a vice president of this corporation, and shall be
attested by the secretary or an assistant secretary of this
corporation. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall
have full right, power and authority to vote the share or shares
of stock issued by such other corporation and owned by this
corporation the same as such share or shares might be voted by
this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors from time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or
repealed, in whole or in part, and new by-laws may be adopted at
any annual, regular or special meeting of the board of directors
by the affirmative vote of a majority of the members of the board
of directors.
ARTICLES OF INCORPORATION
OF
PSI INTERNATIONAL, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI International, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in the construction, operation,
development or ownership of cogenerating facilities or power
production facilities;
(b) To enter into joint ventures or partnership
agreements;
(c) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(d) To engage in utility and industrial salvage
service. To buy, sell or deal in utility or industrial scrap or
salvage materials. To erect, install, dismantle, salvage and
scrap new or used electric utility supplies, material and
equipment;
(e) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana or the
United States or its territories, and, in general, to do and
perform any and all things necessary, convenient or proper for
the carrying out or accomplishment of the objects or purposes
specified in this ARTICLE II, or any of them, or any objects or
purposes incidental thereto, and to possess and enjoy all of the
rights, powers, privileges, authority and immunities which may be
granted to bodies corporate under the Act and the laws of the
State of Indiana;
(f) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(g) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(h) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(i) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(j) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(k) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(l) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(m) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 251 North Illinois
Street, Suite 1400, Indianapolis, Indiana 46204.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1400,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Jon D. Noland
Jon D. Noland
DATED: Dec. 6, 1991
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI INTERNATIONAL, INC.
<PAGE>
NOTE
The marginal notes herein contained are no part of the By-laws of
PSI International, Inc., as adopted by the board of directors,
being here added solely for the convenience of the reader.
<PAGE>
BY-LAWS
OF
PSI INTERNATIONAL, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI International,
Inc. shall be at 251 North Illinois Street, Suite 1400, in the
city of Indianapolis, county of Marion and state of Indiana; and
the corporation may have such other offices at such other places
as the board of directors may from time to time designate, or as
the business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the city of Indianapolis,
Indiana, or at such other place within or outside the state of
Indiana through the use of any means of communication by which
all shareholders participating may simultaneously hear each other
at the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the president or a vice president, by
the board of directors, or by the shareholders holding of record
such number of the outstanding shares of the corporation as
represents not less than one-fourth of the aggregate number of
votes that would be voted at such meeting if there were voted
thereat all the outstanding shares entitled to vote on the
business proposed to be transacted thereat. All requests for
special meetings of shareholders shall state the time, manner,
place and purpose thereof. Only business within the purpose
stated in such request shall be conducted at such meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The president, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the president, the vice president if present, shall
so chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the president or
a vice president by causing the secretary or an assistant
secretary to give to each director, either personally or by
telephone, mail or telegraph. Special meetings of the board of
directors shall be called by the president or a vice president in
like manner and on like notice at the written request of at least
two directors. Special meetings of the board of directors may be
held at the principal office of the corporation or at such other
place, within or without the state of Indiana, as shall be
specified in the notice of the meeting, or, if held upon waiver
of notice, as shall be specified in such waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than two of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
president, one or more vice presidents, a general manager, a
secretary, one or more assistant secretaries, a treasurer, one or
more assistant treasurers, and a comptroller. If deemed
advisable by the board of directors, any two or more offices may
be held by the same person, except that the duties of the
president or a vice president shall not be performed by the same
person who performs the duties of secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The president shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the president, the vice president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the president shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by the vice president,
unless otherwise ordered by the board of directors.
SECTION 7. The vice president and general manager shall,
subject to the control of the board of directors, and the
president have general supervision over the management and
direction of the affairs of the corporation, and supervision of
all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors or the president. He shall report to
the president. In case of the absence, disability, death,
resignation or removal from office of the vice president and
general manager, the powers and duties of the vice president and
general manager shall, for the time being, devolve upon and be
exercised by the president, unless otherwise ordered by the board
of directors.
SECTION 8. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
secretary, the powers and duties of the secretary shall, for the
time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the president or a vice president.
SECTION 9. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the president or a vice president. In
case of the absence, disability, death, resignation or removal
from office of the secretary, his powers and duties shall, for
the time being, devolve upon such one of the assistant
secretaries as the board of directors, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and he
shall thereupon, during such period, exercise and perform all of
the powers and duties of the secretary, except as may be
otherwise provided by the board of directors, the president or a
vice president.
SECTION 10. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the president and a vice president.
He shall render to the president, a vice president and the
board of directors, at the regular meetings of the board of
directors, or whenever the same shall be required, an account of
all his transactions as treasurer and of the financial condition
of the corporation. He shall give the corporation a bond, if
required by the board of directors, in such an amount and with
such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the president or a vice president.
SECTION 11. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the president or a vice president. In
case of the absence, disability, death, resignation or removal
from office of the treasurer, his powers and duties shall, for
the time being, devolve upon such one of the assistant treasurers
as the board of directors, the president, a vice president or the
treasurer may designate, or, if there be but one assistant
treasurer, then upon such assistant treasurer; and he shall
thereupon, during such period, exercise and perform all of the
powers and duties of the treasurer, except as may be otherwise
provided by the board of directors, the president or a vice
president. Each or any assistant treasurer shall likewise give
the corporation a bond, if required by the board of directors, in
such amount and with such surety or sureties as may be ordered by
the board of directors.
SECTION 12. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the comptroller, the powers and duties of the comptroller shall
be delegated by the board of directors, the president or a vice
president.
SECTION 13. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the auditor, the powers and
duties of the auditor shall be delegated by the board of
directors, the president or a vice president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the president or a vice president
and the secretary or an assistant secretary of the corporation.
In any case where such a certificate is also signed by a transfer
agent and a registrar or either of them, the respective
signatures of the president or a vice president and of the
secretary or an assistant secretary thereon may be facsimiles,
engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the president and
a vice president, or any of them, to designate in writing the one
or more officers or other employees authorized to sign such
drafts. To the extent that the board of directors may by
resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the president or a
vice president, and may be (but need not be) attested by the
secretary or an assistant secretary. Notwithstanding the
immediately preceding sentence of this Section 2, written
agreements of this corporation (other than deeds and mortgages
made by this corporation), which pertain to the routine
operations of this corporation and are regularly being made in
the ordinary course of carrying on such operations, may be
executed for and on behalf of this corporation by any officer or
officers of this corporation, or by any other agent or agents of
this corporation, to the extent that such person or persons may,
from time to time, be so authorized to act by either resolution
of the board of directors or by written authorization of an
officer of this corporation who has been authorized by resolution
of the board of directors to execute such written authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the president or a vice president of this corporation, and
said endorsement shall be duly attested by the secretary or an
assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the president of this corporation, if
he be present, or in his absence by the president of this
corporation if he be present, or in the absence of such president
by any vice president of this corporation who may be present.
Whenever, in the judgment of the president or a vice president of
this corporation, it is desirable for this corporation to execute
a proxy or give a shareholder's consent in respect of any share
or shares of stock issued by any other corporation and owned by
this corporation, such proxy or consent shall be executed in the
name of this corporation by the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI POWER RESOURCE DEVELOPMENT, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Power Resource Development, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in the construction, operation,
development or ownership of cogenerating facilities or power
production facilities;
(b) To enter into joint ventures or partnership
agreements;
(c) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(d) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana, and,
in general, to do and perform any and all things necessary,
covenient or proper for the carrying out or accomplishment of the
objects or purposes specified in this ARTICLE II, or any of them,
or any objects or purposes incidental thereto, and to possess and
enjoy all of the rights, powers, privileges, authority and
immunities which may be granted to bodies corporate under the Act
and the laws of the State of Indiana;
(e) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(f) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(i) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(j) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessble shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Jon D. Noland
Jon D. Noland
DATED: Jan. 22, 1990
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI RESOURCE DEVELOPMENT, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI Resource
Development, Inc. shall be at 1000 East Main Street, in the town
of Plainfield, county of Hendricks and state of Indiana; and the
corporation may have such other offices at such other places as
the board of directors may from time to time designate, or as the
business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than three of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the chairman, the president shall preside at all meetings of
the board of directors. When the board of directors is not in
session, the chairman shall have authority to suspend the
authority of any other officer or officers of the corporation;
subject, however, to the pleasure of the board of directors at
its next meeting. In the case of the absence, disability, death,
resignation or removal from office of the chairman, the powers
and duties of the chairman shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for him by
the board of directors or the chairman. He shall report to the
chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of
the president shall, for the time being, devolve upon and be
exercised by a vice president, unless otherwise ordered by the
board of directors or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors, the chairman or the president. He
shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the vice
president and general manager, the powers and duties of the vice
president and general manager shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors, or the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. He shall
attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
He shall give or cause to be given notice of all meetings of the
shareholders and the board of directors when such notice shall be
required. He shall file and take charge of all papers and
documents belonging to the corporation and shall have such other
powers and duties as are incident to the office of secretary of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, the powers
and duties of the secretary shall, for the time being, devolve
upon and be exercised by an assistant secretary, unless otherwise
ordered by the board of directors, the chairman, the president or
a vice president.
SECTION 10. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, his powers
and duties shall, for the time being, devolve upon such one of
the assistant secretaries as the board of directors, the
chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and he shall thereupon, during such
period, exercise and perform all of the powers and duties of the
secretary, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
He shall render to the chairman, president, a vice president
and the board of directors, at the regular meetings of the board
of directors, or whenever the same shall be required, an account
of all his transactions as treasurer and of the financial
condition of the corporation. He shall give the corporation a
bond, if required by the board of directors, in such an amount
and with such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the treasurer, his powers
and duties shall, for the time being, devolve upon such one of
the assistant treasurers as the board of directors, the chairman,
the president, a vice president or the treasurer may designate,
or, if there be but one assistant treasurer, then upon such
assistant treasurer; and he shall thereupon, during such period,
exercise and perform all of the powers and duties of the
treasurer, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president. Each
or any assistant treasurer shall likewise give the corporation a
bond, if required by the board of directors, in such amount and
with such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In
case of the absence, disability, death, resignation or removal
from office of the comptroller, the powers and duties of the
comptroller shall be delegated by the board of directors, the
chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the chairman, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI POWER RESOURCE OPERATIONS, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Power Resource Operations, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in the construction, operation,
development or ownership of cogenerating facilities or power
production facilities;
(b) To enter into joint ventures or partnership
agreements;
(c) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(d) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana, and,
in general, to do and perform any and all things necessary,
covenient or proper for the carrying out or accomplishment of the
objects or purposes specified in this ARTICLE II, or any of them,
or any objects or purposes incidental thereto, and to possess and
enjoy all of the rights, powers, privileges, authority and
immunities which may be granted to bodies corporate under the Act
and the laws of the State of Indiana;
(e) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(f) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(i) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(j) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessble shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Jon D. Noland
Jon D. Noland
DATED: Dec. 21, 1989
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI RESOURCE OPERATIONS, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI Resource
Operations, Inc. shall be at 1000 East Main Street, in the town
of Plainfield, county of Hendricks and state of Indiana; and the
corporation may have such other offices at such other places as
the board of directors may from time to time designate, or as the
business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than three of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the chairman, the president shall preside at all meetings of
the board of directors. When the board of directors is not in
session, the chairman shall have authority to suspend the
authority of any other officer or officers of the corporation;
subject, however, to the pleasure of the board of directors at
its next meeting. In the case of the absence, disability, death,
resignation or removal from office of the chairman, the powers
and duties of the chairman shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for him by
the board of directors or the chairman. He shall report to the
chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of
the president shall, for the time being, devolve upon and be
exercised by a vice president, unless otherwise ordered by the
board of directors or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors, the chairman or the president. He
shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the vice
president and general manager, the powers and duties of the vice
president and general manager shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors, or the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. He shall
attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
He shall give or cause to be given notice of all meetings of the
shareholders and the board of directors when such notice shall be
required. He shall file and take charge of all papers and
documents belonging to the corporation and shall have such other
powers and duties as are incident to the office of secretary of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, the powers
and duties of the secretary shall, for the time being, devolve
upon and be exercised by an assistant secretary, unless otherwise
ordered by the board of directors, the chairman, the president or
a vice president.
SECTION 10. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, his powers
and duties shall, for the time being, devolve upon such one of
the assistant secretaries as the board of directors, the
chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and he shall thereupon, during such
period, exercise and perform all of the powers and duties of the
secretary, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
He shall render to the chairman, president, a vice president
and the board of directors, at the regular meetings of the board
of directors, or whenever the same shall be required, an account
of all his transactions as treasurer and of the financial
condition of the corporation. He shall give the corporation a
bond, if required by the board of directors, in such an amount
and with such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the treasurer, his powers
and duties shall, for the time being, devolve upon such one of
the assistant treasurers as the board of directors, the chairman,
the president, a vice president or the treasurer may designate,
or, if there be but one assistant treasurer, then upon such
assistant treasurer; and he shall thereupon, during such period,
exercise and perform all of the powers and duties of the
treasurer, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president. Each
or any assistant treasurer shall likewise give the corporation a
bond, if required by the board of directors, in such amount and
with such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In
case of the absence, disability, death, resignation or removal
from office of the comptroller, the powers and duties of the
comptroller shall be delegated by the board of directors, the
chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the chairman, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI RECYCLING, INC.
The undersigned Incorporator, desiring to form a (the
"Corporation") pursuant to the provisions of the Indiana Business
Corporation Law, adopts the following Articles of Incorporation
for such Corporation.
ARTICLE I
Name
The name of the Corporation is:
"PSI Recycling, Inc."
ARTICLE II
Purposes
The purposes for which it is formed are as follows:
(a) to salvage scrap, surplus, damaged or
obsolete paper, wire, materials and equipment of whatever kind or
description from any source;
(b) to reprocess such salvage and to dispose of
such reprocessed material;
(c) to buy, sell, lease, use, mortgage, improve
or otherwise handle, deal in and dispose of such material as may
be necessary or convenient;
(d) to carry on the business alone, in, with or
as agent for other individuals, partnerships, joint ventures,
corporations, associations or other forms of enterprise;
(e) to borrow or lend money and to make
guarantees;
(f) to purchase, lease, acquire, own, hold, sell
or mortgage, real and personal property of every kind; and;
(g) to have and to exercise all the powers
conferred by the laws of Indiana upon corporations formed under
the Indiana Business Corporation Law, and all amendments made
thereto from time to time.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 20,000,000 shares, of
which 15,000,000 shares shall be Common Stock, without par value,
and 5,000,000 shares shall be Preferred Stock, $100 par value.
The designations, relative rights, preferences, qualifications,
limitations and restrictions (other than voting rights) which
shall attach to said Cumulative Preferred Stock and Common Stock,
respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE (V) (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE (V) (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE (V) (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE (V) (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE (V)
(C), and to any further limitations prescribed in accordance with
the provisions of subdivision (i) (h) under "Grant of Authority
to Board of Directors" in this ARTICLE (V) (B), the Board of
Directors may declare, out of any funds legally available
therefor, dividends upon the then outstanding shares of any class
of stock ranking junior to the Cumulative Preferred Stock, and no
holders of shares of Cumulative Preferred Stock of any series
shall be entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE (V) (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE (V) (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share computed at the annual dividend rate for the series of
which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE (V) (B)
(iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
or the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) the Common Stock Equity shall not
be less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock; provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For purposes of ARTICLE (V) (B) of these
Articles of Incorporation:
(I) the term "Common Stock Equity"
shall mean the sum of the amount of the stated value of the
issued and outstanding shares of the Common Stock and the surplus
(including capital or paid-in surplus) of the Corporation, less
the amount known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of plant and
other property, and less any items set forth on the asset side of
the balance sheet as a result of accounting convention such as
unamortized debt discount and expense, capital stock discount and
expense, and the excess, if any, of the aggregate amount payable
on involuntary dissolution, liquidation or winding up of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock over the aggregate stated value of such shares, unless such
amount or items so to be deducted in the determination of the
Common Stock Equity are being amortized or are provided for by
reserves;
(II) the term "Gross Operating Revenues
of the Corporation" for any period shall mean an amount
determined by deducting from all revenues of the Corporation for
such period derived from the operation of the properties owned by
the Corporation, the total of all cash payments which shall have
been made or agreed to be made and for which liability shall have
been incurred by the Corporation as rental for such period for
any property not owned by the Corporation; and
(III) the term "Net Earnings of the
Corporation Available for the Payment of Interest Charges" for
any twelve month period shall mean an amount equal to the sum of
the operating revenues and income from investments and other
miscellaneous income for such period with respect to which the
determination of such net income is being made, less all proper
deductions (including accruals) for operating expenses for such
period, including maintenance and provision for depreciation in
the actual amount thereof for such period as shown on the books
of the Corporation or an amount equal to fifteen percentum (15%)
of the Gross Operating Revenues of the Corporation for such
period, whichever is greater, income and excess profits and other
taxes, all as shall be determined in accordance with such system
of accounts as may be prescribed by governmental authorities
having jurisdiction in the premises or, in the absence thereof,
in accordance with sound accounting practice.
C. Common Stock.
(i) After the requirements with respect to
preferential dividends on Preferred Stock (fixed in accordance
with the provisions of Section B of this ARTICLE V), if any,
shall have been met and after the Corporation shall have complied
with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of Section B of this
ARTICLE V) and subject further to any other conditions which may
be fixed in accordance with the provisions of Section B of this
ARTICLE V, then, but not otherwise, the holders of Common Stock
shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors.
(ii) After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
(iii) Except as may otherwise be required by law or
these Articles of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held
by such holder on each matter voted upon by the shareholders and
any such right to vote shall not be cumulative.
D. Other Provisions.
(i) Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
(ii) No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
(iii) The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
(iv) Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director or officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted by
law, as the same exists now or in the future, against liability,
expenses (including attorneys' fees), judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred
by him or her in connection with the defense of any proceeding in
which he or she was or is a party or is threatened to be made a
party by reason of being or having been a director or officer of
the Corporation and such right shall inure to the benefit of his
or her heirs, executors and administrators. The right to
indemnification conferred in this ARTICLE VIII shall include, to
the full extent permitted by law, the right to be paid by the
Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final
disposition.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the
Corporation who are not directors or officers similar to those
conferred in this ARTICLE VIII to directors and officers of the
Corporation.
Such right to indemnification and to the advancement of
expenses conferred in this ARTICLE VIII shall not be exclusive of
any other rights to which any person may be entitled under any
now or hereafter existing statute, any other provision of these
Articles, by-law, agreement, vote of shareholders or otherwise.
Any repeal or modification of this ARTICLE VIII by the
shareholders of the Corporation shall not adversely affect any
right or protection of a director, officer, employee or agent of
the Corporation existing pursuant to this ARTICLE VIII with
respect to any acts or omissions occurring prior to such repeal
or modification.
Incorporator
/s/ Jon D. Noland
Jon D. Noland
DATED: May 31, 1990
This instrument was prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI RECYCLING, INC.
<PAGE>
NOTE
The marginal notes herein contained are no part of the By-laws of
PSI Recycling, Inc., as adopted by the board of directors, being
here added solely for the convenience of the reader.
<PAGE>
BY-LAWS
OF
PSI RECYCLING, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI Recycling, Inc.
shall be at 1000 East Main Street, in the town of Plainfield,
county of Hendricks and state of Indiana; and the corporation may
have such other offices at such other places as the board of
directors may from time to time designate, or as the business of
the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than three of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the chairman, the president shall preside at all meetings of
the board of directors. When the board of directors is not in
session, the chairman shall have authority to suspend the
authority of any other officer or officers of the corporation;
subject, however, to the pleasure of the board of directors at
its next meeting. In the case of the absence, disability, death,
resignation or removal from office of the chairman, the powers
and duties of the chairman shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for him by
the board of directors or the chairman. He shall report to the
chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of
the president shall, for the time being, devolve upon and be
exercised by a vice president, unless otherwise ordered by the
board of directors or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors, the chairman or the president. He
shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the vice
president and general manager, the powers and duties of the vice
president and general manager shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors, or the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. He shall
attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
He shall give or cause to be given notice of all meetings of the
shareholders and the board of directors when such notice shall be
required. He shall file and take charge of all papers and
documents belonging to the corporation and shall have such other
powers and duties as are incident to the office of secretary of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, the powers
and duties of the secretary shall, for the time being, devolve
upon and be exercised by an assistant secretary, unless otherwise
ordered by the board of directors, the chairman, the president or
a vice president.
SECTION 10. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, his powers
and duties shall, for the time being, devolve upon such one of
the assistant secretaries as the board of directors, the
chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and he shall thereupon, during such
period, exercise and perform all of the powers and duties of the
secretary, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
He shall render to the chairman, president, a vice president
and the board of directors, at the regular meetings of the board
of directors, or whenever the same shall be required, an account
of all his transactions as treasurer and of the financial
condition of the corporation. He shall give the corporation a
bond, if required by the board of directors, in such an amount
and with such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the treasurer, his powers
and duties shall, for the time being, devolve upon such one of
the assistant treasurers as the board of directors, the chairman,
the president, a vice president or the treasurer may designate,
or, if there be but one assistant treasurer, then upon such
assistant treasurer; and he shall thereupon, during such period,
exercise and perform all of the powers and duties of the
treasurer, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president. Each
or any assistant treasurer shall likewise give the corporation a
bond, if required by the board of directors, in such amount and
with such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In
case of the absence, disability, death, resignation or removal
from office of the comptroller, the powers and duties of the
comptroller shall be delegated by the board of directors, the
chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the chairman, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI SUNNYSIDE, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Sunnyside, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in the construction, operation,
development or ownership of cogenerating facilities or power
production facilities;
(b) To enter into joint ventures or partnership
agreements;
(c) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(d) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana, and,
in general, to do and perform any and all things necessary,
covenient or proper for the carrying out or accomplishment of the
objects or purposes specified in this ARTICLE II, or any of them,
or any objects or purposes incidental thereto, and to possess and
enjoy all of the rights, powers, privileges, authority and
immunities which may be granted to bodies corporate under the Act
and the laws of the State of Indiana;
(e) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(f) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(g) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(h) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(i) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(j) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(k) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(l) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessable shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Jon D. Noland
Jon D. Noland
DATED: Dec. 6, 1990
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI SUNNYSIDE, INC.
<PAGE>
NOTE
The marginal notes herein contained are no part of the By-laws of
PSI Sunnyside, Inc., as adopted by the board of directors, being
here added solely for the convenience of the reader.
<PAGE>
BY-LAWS
OF
PSI SUNNYSIDE, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI Sunnyside, Inc.
shall be at 1000 East Main Street, in the town of Plainfield,
county of Hendricks and state of Indiana; and the corporation may
have such other offices at such other places as the board of
directors may from time to time designate, or as the business of
the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than three of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the chairman, the president shall preside at all meetings of
the board of directors. When the board of directors is not in
session, the chairman shall have authority to suspend the
authority of any other officer or officers of the corporation;
subject, however, to the pleasure of the board of directors at
its next meeting. In the case of the absence, disability, death,
resignation or removal from office of the chairman, the powers
and duties of the chairman shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for him by
the board of directors or the chairman. He shall report to the
chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of
the president shall, for the time being, devolve upon and be
exercised by a vice president, unless otherwise ordered by the
board of directors or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors, the chairman or the president. He
shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the vice
president and general manager, the powers and duties of the vice
president and general manager shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors, or the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. He shall
attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
He shall give or cause to be given notice of all meetings of the
shareholders and the board of directors when such notice shall be
required. He shall file and take charge of all papers and
documents belonging to the corporation and shall have such other
powers and duties as are incident to the office of secretary of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, the powers
and duties of the secretary shall, for the time being, devolve
upon and be exercised by an assistant secretary, unless otherwise
ordered by the board of directors, the chairman, the president or
a vice president.
SECTION 10. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, his powers
and duties shall, for the time being, devolve upon such one of
the assistant secretaries as the board of directors, the
chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and he shall thereupon, during such
period, exercise and perform all of the powers and duties of the
secretary, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
He shall render to the chairman, president, a vice president
and the board of directors, at the regular meetings of the board
of directors, or whenever the same shall be required, an account
of all his transactions as treasurer and of the financial
condition of the corporation. He shall give the corporation a
bond, if required by the board of directors, in such an amount
and with such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the treasurer, his powers
and duties shall, for the time being, devolve upon such one of
the assistant treasurers as the board of directors, the chairman,
the president, a vice president or the treasurer may designate,
or, if there be but one assistant treasurer, then upon such
assistant treasurer; and he shall thereupon, during such period,
exercise and perform all of the powers and duties of the
treasurer, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president. Each
or any assistant treasurer shall likewise give the corporation a
bond, if required by the board of directors, in such amount and
with such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In
case of the absence, disability, death, resignation or removal
from office of the comptroller, the powers and duties of the
comptroller shall be delegated by the board of directors, the
chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the chairman, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI T&D INTERNATIONAL, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation") pursuant
to the provisions of the Indiana Business Corporation Law as amended
(hereinafter referred to as to the "Act"), execute the following
Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI T&D International, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the stock
of other energy, environmental, or functionally related corporations,
and to do every act and thing covered generally by the denomination
"holding company," including the directing of the operations of other
corporations through the ownership of stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production, transmission and
distribution facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage in any other lawful energy,
environmental, or functionally related business permitted to a
corporation organized under the Act;
(e) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana or the
United States or its territories, and, in general, to do and perform
any and all things necessary, convenient, or proper for the carrying
out or accomplishment of the objects or purposes specified in this
ARTICLE II, or any of them, or any objects or purposes incidental
thereto, and to possess and enjoy all of the rights, powers,
privileges, authority, and immunities which may be granted to bodies
corporate under the Act and the laws of the State of Indiana;
(f) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage, pledge,
exchange, or otherwise dispose of real and personal property of every
kind, including shares of stock, bonds, debentures, notes, evidences
of indebtedness, and other securities, contracts, or obligations of
any corporation or corporations, association or associations,
partnership or partnerships, foreign or domestic governments or other
legal entities, domestic or foreign, and to pay in whole or in part
in cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property, stocks,
bonds, debentures, notes, evidences of indebtedness, or other
securities, contracts, or obligations, to receive, collect, and
dispose of the interest, dividends, and income arising from the
property, and to possess and exercise in respect of the same, all the
rights, powers, and privileges of ownership, including all voting
powers on any stocks so owned;
(g) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or other
legal entity, domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness, or other securities of which
are held by this Corporation or in which it shall have any interest,
and to do any acts designed to protect, preserve, improve, or enhance
the value of any property at any time held or controlled by this
Corporation or in which it at that time may be interested;
(h) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership, or corporation, foreign or domestic
government, or other legal entity;
(i) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably necessary
for the carrying on of the business of the Corporation;
(j) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or otherwise
dispose of, or encumber, and to aid and subscribe toward the
acquisition, development, or improvement of, or to turn to account,
and convey, real and personal property, of every class and
description, and rights and privileges therein, in the State of
Indiana or elsewhere; and
(k) To buy, lease, or otherwise acquire, so far as
may be permitted by law, the whole or any part of the business, good
will, and assets of any person, firm, association, or corporation
(either foreign or domestic), suitable, convenient, advantageous, or
necessary for the business of the Corporation; and generally, as
principal or agent, to institute, enter into, carry on, assist,
promote, and participate in financial, commercial, mercantile, and
other business, works, contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident Agent
for service of process is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1410, Indianapolis,
Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation shall
have the authority to issue shall be 120,000,000 shares, of which
100,000,000 shares shall be Common Stock, without par value, and
20,000,000 shares shall be Cumulative Preferred Stock, $100 par
value. Shares of the Common Stock may be issued from time to time as
the Board of Directors shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors. Authority
is hereby expressly granted to the Board of Directors or a committee
thereof to authorize the issue of shares of Cumulative Preferred
Stock in one or more series, and to determine and state, by the
resolution or resolutions authorizing the issue of each series of
Cumulative Preferred Stock, the designation of such series and the
relative rights (other than voting rights), preferences,
qualifications, limitations and restrictions of such series.
B. Voting Rights of Cumulative Preferred Stock.
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock having a
par value of $100.00 per share shall be entitled to one vote for each
share of such stock so held by him, subject, however, to the
following provisions of this ARTICLE V (B);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (b) shall not without, but may with, the affirmative
vote by the record holders of the Cumulative Preferred Stock (given
at an annual or special meeting) in such number of votes as is at
least two-thirds of the aggregate number of votes appertaining to the
Cumulative Preferred Stock that would be voted at such meeting if all
the then outstanding Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of stock
of any class ranking prior to the Cumulative Preferred Stock as to
dividends or assets or any securities of any kind or class
convertible into shares of stock of any class ranking prior to the
Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a parity
with the Cumulative Preferred Stock as to dividends or assets or
securities convertible into shares of the Cumulative Preferred Stock
or stock on a parity therewith, other than in exchange for or for the
purpose of effecting the retirement, by redemption or otherwise, of
not less than a like number of shares of the Cumulative Preferred
Stock or shares of stock on a parity therewith or securities
convertible into not less than a like number of such shares, as the
case may be, at the time outstanding, unless:
(A) the Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into such shares are proposed to
be issued, shall have been at least one and one-half times the
aggregate of (x) the dividend requirements for a twelve months'
period upon all shares of the Cumulative Preferred Stock and stock,
if any, ranking prior to or on a parity with the Cumulative Preferred
Stock as to dividends or assets, to be outstanding after the issuance
of the shares or convertible securities proposed to be issued, and
(y) the interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the issuance
of the shares or convertible securities proposed to be issued, and
(B) the Common Stock Equity shall be not
less than the aggregate amount payable on involuntary dissolution,
liquidation or winding up of the Corporation upon all shares of the
Cumulative Preferred Stock and stock, if any, ranking prior thereto
or on a parity therewith, to be outstanding after the issuance of the
shares or convertible securities proposed to be issued; or
(III) Amend the provisions of these Articles of
Incorporation so as to affect adversely any of the preferences or
other rights hereby given to the holders of shares of the Cumulative
Preferred Stock, provided, however, that if any such amendment would
be adverse to the holders of one or more, but less than all, of the
series of the Cumulative Preferred Stock at the time outstanding, the
affirmative vote hereby required shall be only the affirmative vote
by the record holders of each series so adversely affected in such
number of votes from each such series as is at least two-thirds of
the aggregate number of votes appertaining to such series that would
be voted at such meeting if all the then outstanding shares of such
series were there voted.
No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at or prior to the time when
such amendment, alteration or repeal is to take effect or when the
issuance of any such stock or convertible securities is to be made,
as the case may be, provision is to be made for the redemption of all
shares of Cumulative Preferred Stock at the time outstanding or, in
the case of any such amendment, alteration or repeal as to which the
consent of less than all series of the Cumulative Preferred Stock
would otherwise be required, for the redemption of all shares of the
series of Cumulative Preferred Stock the consent of which would
otherwise be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (c)) shall not without, but may with, the affirmative
vote by the record holders of the Cumulative Preferred Stock (given
at an annual or special meeting) in such number of votes as is a
majority of the aggregate number of votes appertaining to the
Cumulative Preferred Stock that would be voted at such meeting if all
the then outstanding Cumulative Preferred Stock were there voted,
merge or consolidate the Corporation with or into any other
corporation, merge any other corporation into the Corporation, or
sell all or substantially all of the assets of the Corporation,
unless such merger, consolidation or sale, or the issuance or
assumption of all securities to be issued or assumed in connection
therewith, shall have been ordered, approved or permitted by the
Securities and Exchange Commission under the Public Utility Holding
Company Act of 1935, or by any successor commission or other
regulatory authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative Preferred
Stock shall be required if, at the time of or prior to effecting such
sale, lease, conveyance, consolidation or merger, provision is to be
made for the redemption of all shares of Cumulative Preferred Stock
at the time outstanding.
(d) Except when some mandatory provisions of law
shall be controlling, whenever shares of two or more series of the
Cumulative Preferred Stock are outstanding, no particular series of
the Cumulative Preferred Stock shall be entitled to vote as a
separate series on any matter and all shares of the Cumulative
Preferred Stock of all series shall be deemed to constitute but one
class for any purpose for which a vote of the shareholders of the
Corporation by classes may now or hereafter be required.
(e) The Corporation shall not declare any
dividend or make any distribution in request of any stock of this
Corporation ranking junior to the Cumulative Preferred Stock as to
dividends or assets, other than dividends in shares of junior stock,
or purchase or otherwise acquire for value any outstanding shares of
junior stock (each such dividend, distribution, purchase or
acquisition being herein called a junior stock dividend) in
contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or as a
result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends in
an amount which, together with all other dividends on the Common
Stock paid within the year ending with and including the date on
which such dividend is payable, exceeds 50% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar month
in which such dividends are declared, except in an amount not
exceeding the aggregate of dividends on the Common Stock which under
the restrictions set forth above in this subdivision (1) could have
been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less than
20% of Total Capitalization, the Corporation shall not declare
dividends on the Common Stock in an amount which, together with all
other dividends on the Common Stock paid within the year ending with
and including the date on which such dividend is payable, exceeds 75%
of the Net Income of the Corporation Available for Dividends on the
Common Stock for the twelve full calendar months immediately
preceding the calendar month in which such dividends are declared,
except in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in
subdivision (1) and in this subdivision (2) could have been, and have
not been, declared.
(b) As used herein, "Common Stock Equity" shall
mean the aggregate of the par value of, or stated capital represented
by, the outstanding shares of Common Stock, all earned surplus,
capital or paid-in surplus, and any premiums on the Common Stock then
carried on the books of the Corporation, less:
(1) The excess, if any, of the aggregate
amount payable on involuntary liquidation of the Corporation upon all
outstanding shares of Cumulative Preferred Stock of the Corporation
of all classes over the sum of (i) the aggregate par or stated value
of such shares and (ii) any premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on the
asset side of the balance sheet of the Corporation as the result of
accounting convention, such as unamortized debt discount and expense;
provided, however, that no deductions shall be required to be made in
respect of items referred to in subdivisions (2) and (3) of this
paragraph (b) in cases in which such items are being amortized or are
provided for, or are being provided for, by reserves.
(c) As used herein "Total Capitalization" shall
mean the aggregate of:
(1) The principal amount of all outstanding
indebtedness of the Corporation maturing more than twelve months
after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes of
the capital stock of the Corporation, earned surplus, and capital or
paid-in surplus, less any amounts required to be deducted pursuant to
subdivisions (2) and (3) of paragraph (b) above in the determination
of Common Stock Equity.
(3) The term "Net Income of the Corporation
Available for Dividends on the Common Stock" for any twelve-month
period shall mean the Net Earnings of the Corporation Available for
the Payment of Interest Charges for such period, less interest
charges, amortization charges, other proper income deductions, and
dividends, paid or accrued, on all outstanding shares of stock of the
Corporation having a preference as to dividends over the Common Stock
for such period, all as shall be determined in accordance with such
system of accounts as may be prescribed by governmental authorities
having jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Other Provisions.
1. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights to
purchase or acquire shares of any class or series of stock or of
other securities of the Corporation shall have any preemptive right
to purchase, acquire or subscribe for any unissued stock of any class
or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of
the Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of any class or series, or carrying any right
to purchase or acquire stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase or acquire stock, may be
issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations, and
upon such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
2. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation, or
in any amendment thereto, in the manner now or hereafter prescribed
by law, but subject to such conditions and limitations as are
hereinbefore prescribed, and all rights conferred upon shareholders
in the Articles of Incorporation of this Corporation, or any
amendment thereto, are granted subject to this reservation.
3. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year in
which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in the
By-laws, disqualification or removal from office. Any vacancy on the
Board of Directors that results from other than an increase in the
number of directors may be filled by a majority of the Board of
Directors then in office even if less than a quorum, or by a sole
remaining director. The term of any director elected by the Board of
Directors to fill a vacancy not resulting from an increase in the
number of directors shall expire at the next shareholders' meeting at
which directors are elected, and the remainder of such term, if any,
shall be filled by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the Board of Directors if such person
shall have attained the age of seventy years in the calendar year
preceding the date of such election, reelection or appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of the
Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield,
Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted by law
against expenses (including attorneys' fees), judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with the defense of any proceeding in
which he or she was or is a party or is threatened to be made a party
by reason of being or having been a director or an officer of the
Corporation. Such right of indemnification is not exclusive of any
other rights to which such director or officer may be entitled under
any now or hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise. If
the Act of the State of Indiana is amended after approval by the
shareholders of this ARTICLE VIII to authorize corporate action
further eliminating or limiting the personal liability of directors,
then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Act of
the State of Indiana, as so amended. Any repeal or modification of
this ARTICLE VIII by the shareholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
Incorporator
/s/ Cheryl M. Foley
Cheryl M. Foley
DATED: Aug. 3, 1994
This instrument prepared
by:
Frank T. Lewis
Attorney at Law
1000 East Main Street
Plainfield, Indiana
46168
BY-LAWS
OF
PSI T&D INTERNATIONAL, INC.
<PAGE>
BY-LAWS
OF
PSI T&D INTERNATIONAL, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of PSI T&D International, Inc.
shall be at 251 North Illinois Street, Suite 1410, Indianapolis,
Indiana 46204; and the corporation may have such other offices at
such other places as the board of directors may from time to time
designate, or as the business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at the
office of the corporation in the city of Indianapolis, Indiana, or at
such other place within or outside the state of Indiana through the
use of any means of communication by which all shareholders
participating may simultaneously hear each other at the meeting. The
place and manner of the meeting shall be specified in the notice of
such meeting, or if such meeting is held upon waiver of notice,
specified in the waiver of notice signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be held at
10:00 A.M. on the third Wednesday of April of each year if not a
legal holiday, and if a legal holiday, then on the next succeeding
day not a legal holiday, for the purpose of electing directors and
for the transaction of such other business as may legally come before
the meeting. If for any reason the annual meeting of the
shareholders shall not be held at the time and place herein provided,
the same may be held at any time thereafter, or the business to be
transacted at such annual meeting may be transacted at any special
meeting called for that purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at such
address as appears on the records of the corporation, at least ten
days, but not more than sixty days, before the date of the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, shall be
held if called by the chairman, the president or a vice president, by
the board of directors, or by the shareholders holding of record such
number of the outstanding shares of the corporation as represents not
less than one-fourth of the aggregate number of votes that would be
voted at such meeting if there were voted thereat all the outstanding
shares entitled to vote on the business proposed to be transacted
thereat. All requests for special meetings of shareholders shall
state the time, manner, place and purpose thereof. Only business
within the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special meetings of
shareholders stating (i) the place, manner, day and hour of the
meeting, and (ii) the purpose or purposes for which such meeting is
called, shall be delivered or mailed by the secretary, assistant
secretary or by the officers or persons calling the meeting to each
shareholder of record entitled to vote at such meeting at such
address as appears on the records of the corporation, at least ten
days before the date of such meeting.
SECTION 6. Notice of any meeting of shareholders may be waived
in writing by any shareholder if the waiver sets forth in reasonable
detail the purpose or purposes for which the meeting is called and
the time and place thereof. Attendance at any meeting in person or
by proxy shall constitute a waiver of notice of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number of
the outstanding shares of the corporation as represents a majority of
the aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to vote
at such meeting, shall be requisite to constitute a quorum for the
election of directors or for the transaction of other business,
unless otherwise provided by law. If, however, the holders of such
majority shall not be present or represented at any meeting of the
shareholders of the corporation, the shareholders entitled to vote
thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority shall
be present or represented. At such adjourned meeting at which the
holders of such majority shall be present or represented, any
business may be transacted which might have been transacted at the
meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock standing in
the shareholder's name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which any
installment is due and unpaid, or which belongs to the corporation,
or which shall have been transferred on the books of the corporation
within such number of days, not exceeding seventy, next preceding the
date of such meeting as the board of directors shall determine, or,
in the absence of such determination, within ten days next preceding
the date of such meeting. At any adjourned meeting of shareholders,
the board of directors shall fix a record date for shareholders
entitled to vote at such adjourned meeting which must be a new date
if the meeting is adjourned for more than one hundred twenty days.
A plurality vote shall be sufficient to elect any director.
SECTION 9. The secretary shall make, or cause the agent having
charge of the stock transfer books of the corporation to make, at
least five days before each election of directors, a complete list of
the shareholders entitled by the articles of incorporation to vote at
such election, arranged in alphabetical order, with the address and
number of shares so entitled to vote held by each, which list shall
be on file at the principal office of the corporation and subject to
inspection by any shareholder within the usual business hours during
said five days. Such list shall be produced and kept open at the
time and place of election and subject to the inspection of any
shareholder or shareholder's agent or attorney authorized in writing
during the holding of such election. The original stock register or
transfer book, or the duplicate thereof kept in the state of Indiana,
shall be the only evidence as to who are the shareholders entitled to
examine such list or the stock ledger or transfer book or to vote at
any meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by proxy
executed in writing by the shareholder or a duly authorized agent or
attorney in fact. No proxy shall be valid after eleven months from
the date of its execution, unless a longer time is expressly provided
therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all necessary
and appropriate arrangements for the meetings of the shareholders,
receive all proxies, and ascertain and report by certificate to each
meeting of the shareholders the number of shares present in person or
by proxy and entitled to vote at such meeting. In the absence of the
secretary, an assistant secretary shall perform said duties. The
certificate report of the secretary or an assistant secretary as to
the regularity of such proxies and as to the number of shares present
in person or by proxy and entitled to vote at such meeting shall be
received as prima facie evidence of the number of shares, which are
present in person and by proxy and entitled to vote, for the purpose
of establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting shall
choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by an inspector, (ii)
where voting is to be by ballot on any question, the polls shall be
opened and closed and the ballots shall be taken in charge by such
inspector, and (iii) all questions touching the qualification of
voters, the validity of proxies and the acceptance or rejection of
votes shall be decided by such inspector. Such inspector may be
appointed by the board of directors before such meeting, or, if no
such appointment shall have been made, then by the presiding officer
at such meeting. In the event for any reason the inspector
previously appointed shall fail to attend such meeting, or being
present will not or cannot act in such capacity, then an inspector in
place of such inspector failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of the
shareholders, and, as far as applicable, at each special meeting of
the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary or
assistant secretary that such notices were mailed, or the affidavit
of such other person or persons who mailed the notices of such
meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by proxy
and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the transaction of
business,
(6) announcement by the presiding officer of the person to
act as inspector at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and
to do all such acts and things as are necessary or desirable for the
proper conduct of meetings of the shareholders, including, without
limitation, the establishment of procedures for the maintenance of
order, safety, limitations on the time allotted to questions or
comments on the affairs of the corporation, restrictions on entry to
such meeting of the shareholders after the time prescribed for the
commencement thereof, and the opening and closing of the voting
polls.
SECTION 16. The annual meeting of shareholders shall be held at
such time as is provided in Section 2 of this Article for the purpose
of electing directors and for the transaction of only such other
business as is properly brought before the meeting in accordance with
these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II; provided
however, that nothing in this Article II shall be deemed to preclude
discussion by any shareholder of any business properly brought before
the annual meeting.
The chairman of the annual meeting shall, if the facts warrant,
determine and declare to the annual meeting that business was not
properly brought before the annual meeting in accordance with the
provisions of this Article II, and if the chairman should so
determine, the chairman shall so declare to the annual meeting, and
any such business not properly brought before the annual meeting
shall not be transacted.
SECTION 17. Only persons who are nominated in accordance with
the following procedures shall be eligible for election as directors.
Nominations of persons for election to the board of the corporation
at the annual meeting may be made at the annual meeting of
shareholders by or at the direction of the board of directors, by any
nominating committee or person appointed by the board, or by any
shareholder of the corporation, entitled to vote for the election of
directors at the annual meeting, who complies with the notice
procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was not
made in accordance with the foregoing procedure, and if the chairman
should so determine, the chairman shall so declare to the annual
meeting, and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be adjourned
or postponed to a different time or place, and notice of the new
date, time or place need not be given if such adjournment or
postponement is announced at the annual meeting before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of this corporation
managed under the direction of a board of not less than two (2) nor
more than nine (9) directors. A director shall hold office until the
annual meeting for the year in which the director's term expires and
until the director's successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, age and
service limitations as may be set forth in these by-laws,
disqualification or removal from office. Any vacancy on the board of
directors that results from other than an increase in the number of
directors may be filled by a majority of the board of directors then
in office even if less than a quorum, or by a sole remaining
director. The term of any director elected by the board of directors
to fill a vacancy not resulting from an increase in the number of
directors shall expire at the next shareholders' meeting at which
directors are elected, and the remainder of such term, if any, shall
be filled by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or appointment.
Subject to the provisions of the preceding paragraphs, any and
all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the board of
directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these by-
laws expressly conferred upon it, the board of directors may do all
such lawful acts and things as are not by the laws of the state of
Indiana, by the articles of incorporation of the corporation, or by
these by-laws directed or required to be exercised or done by the
shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be held
at the principal office of the corporation as soon as conveniently
possible after the annual meeting of the shareholders, or at such
other place, within or without the state of Indiana, and at such
other time as shall be fixed by the shareholders at their annual
meeting, or as shall be fixed by the consent in writing of all of
such newly elected directors, for the election of officers and for
the transaction of such other business as may properly come before
the meeting. No notice of such annual meeting shall be necessary or
required in order legally to constitute the meeting if a majority of
the newly elected directors shall be present. If a majority shall
not be present at such meeting, those present shall adjourn the
meeting to a specified time and place, and the secretary or an
assistant secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or any
committee thereof may be held at stated times, or from time to time,
and at such place, either within or without the state of Indiana, as
the board of directors or any committee may determine, without call
and without notice. Any or all members of the board of directors or
a committee thereof may participate in any meeting of the board or
committee by any means of a communication by which all persons
participating in the meeting can simultaneously communicate with each
other, and participation in this manner constitutes presence in
person at the meeting.
SECTION 5. Special meetings of the board of directors may be
called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally or by
telephone, mail or telegraph. Special meetings of the board of
directors shall be called by the chairman, the president or a vice
president in like manner and on like notice at the written request of
at least two directors. Special meetings of the board of directors
may be held at the principal office of the corporation or at such
other place, within or without the state of Indiana, as shall be
specified in the notice of the meeting, or, if held upon waiver of
notice, as shall be specified in such waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members are
present, shall be as valid as if held pursuant to proper notice, and
in case a meeting shall be held without notice when all are not
present but the absent directors shall have signed a waiver of notice
of such meeting, whether before or after the time stated in said
waiver, or shall thereafter sign the minutes of the meeting, the same
shall be as valid and binding as though called upon due notice.
SECTION 7. The board of directors may take any action pursuant
to these by-laws without a meeting if the action is taken by all
members of the board. The action shall be evidenced by one or more
written consents describing the action taken, signed by each director
and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken without a meeting shall be
effective when the last director signs the consent, unless the
consent specifies a different prior or subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be necessary
to constitute a quorum for the transaction of any business except the
filling of vacancies, but a less number may adjourn the meeting from
time to time until a quorum is present. The act of a majority of the
board of directors present at a meeting at which a quorum is present
shall be the act of the board of directors, unless the act of a
greater number is required by law or by the articles of incorporation
or by the by-laws.
SECTION 9. The board of directors may, by resolution adopted by
a majority of the members of the board of directors, designate two or
more of their number to constitute an executive committee, which
committee, to the extent provided in said resolution, shall have and
exercise all of the authority of the board of directors in the
management of the corporation.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a chairman,
a president, one or more vice presidents, a general manager, a
secretary, one or more assistant secretaries, a treasurer, one or
more assistant treasurers, and a comptroller. If deemed advisable by
the board of directors, any two or more offices may be held by the
same person, except that the duties of the chairman, the president or
a vice president shall not be performed by the same person who
performs the duties of secretary.
SECTION 2. The officers of the corporation hereinabove provided
for shall be elected by the board of directors at its annual meeting
and shall hold office for one year and/or until their respective
successors shall have been duly elected and shall have qualified.
SECTION 3. The board of directors may, from time to time, elect
or appoint an auditor and such other officers and agents as it shall
deem necessary, who shall hold their respective offices for such
terms and shall exercise such powers and perform such duties as may
be prescribed from time to time by the by-laws, or as in absence of
provision in the by-laws in respect thereto may be prescribed from
time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of directors,
may be removed at any time, with or without cause, by the affirmative
vote of a majority of the whole board of directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the corporation,
or for any other reason that the board of directors shall deem
sufficient, the board of directors may delegate, for the time being,
the powers and/or duties, or any of them, of such officer to any
other officer or to any director.
SECTION 6. The chairman shall be the chief executive officer of
the corporation and shall have general authority over all the affairs
of the corporation and over all other officers, agents and employees
of the corporation. The chairman shall, when present, preside at all
meetings of the shareholders and, in the absence of the chairman, the
president shall preside at all meetings of the board of directors.
When the board of directors is not in session, the chairman shall
have authority to suspend the authority of any other officer or
officers of the corporation; subject, however, to the pleasure of the
board of directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
chairman, the powers and duties of the chairman shall, for the time
being, devolve upon and be exercised by the president, unless
otherwise ordered by the board of directors.
SECTION 7. The president shall, subject to the control of the
board of directors and the chairman, have such powers and perform
such duties as usually devolve upon the president of a corporation
and such other duties as may be prescribed for the president by the
board of directors or the chairman. The president shall report to
the chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of the
president shall, for the time being, devolve upon and be exercised by
a vice president, unless otherwise ordered by the board of directors
or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman and
the president have general supervision over the management and
direction of the affairs of the corporation, and supervision of all
departments and of all officers of the corporation. The vice
president and general manager shall, subject to the other provisions
of these by-laws, have such other powers and perform such other
duties as usually devolve upon the vice president and general manager
of a corporation, and such further duties as may be prescribed for
the president and general manager by the board of directors, the
chairman or the president. The vice president and general manager
shall report to the chairman. In case of the absence, disability,
death, resignation or removal from office of the vice president and
general manager, the powers and duties of the vice president and
general manager shall, for the time being, devolve upon and be
exercised by the president, unless otherwise ordered by the board of
directors, the chairman.
SECTION 9. The secretary shall have the custody and care of the
records, minutes and stock books of the corporation and shall be
responsible for authentication of such records. The secretary shall
attend the meetings of the board of directors and of the shareholders
and duly record, prepare and keep the minutes of their proceedings in
a book or books to be kept for that purpose. The secretary shall
give or cause to be given notice of all meetings of the shareholders
and the board of directors when such notice shall be required. The
secretary shall file and take charge of all papers and documents
belonging to the corporation and shall have such other powers and
duties as are incident to the office of secretary of a corporation,
subject at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In case
of the absence, disability, death, resignation or removal from office
of the secretary, the powers and duties of the secretary shall, for
the time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors, the
chairman, the president or a vice president.
SECTION 10. Each of the assistant secretaries shall assist in
the secretarial duties and shall have such other powers and duties as
may be prescribed for such assistant secretary by the board of
directors, or be delegated to such assistant secretary by the
chairman, the president or a vice president. In case of the absence,
disability, death, resignation or removal from office of the
secretary, those powers and duties shall, for the time being, devolve
upon such one of the assistant secretaries as the board of directors,
the chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and such assistant secretary shall
thereupon, during such period, exercise and perform all of the powers
and duties of the secretary, except as may be otherwise provided by
the board of directors, the chairman, the president or a vice
president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and disbursement of
the funds of the corporation, and shall have the custody also of all
securities belonging to the corporation. The treasurer shall keep
full and accurate accounts of receipts and disbursements in books
belonging to the corporation. The treasurer shall disburse the funds
of the corporation as may be ordered by the board of directors,
taking proper receipts or making proper vouchers for such
disbursements and shall preserve the same at all times during the
treasurer's term of office. When necessary or proper, the treasurer
shall endorse on behalf of the corporation all checks, notes or other
obligations payable to the corporation or coming into the treasurer's
possession for or on behalf of the corporation and shall deposit the
funds arising therefrom together with all other funds and valuable
effects of the corporation coming into the treasurer's possession in
the name and to the credit of the corporation in such depositories as
the board of directors from time to time, by resolution, shall
direct. The treasurer shall have such other powers and duties as are
incident to the office of treasurer of a corporation, subject at all
times to the direction and control of the board of directors, the
chairman, the president and a vice president.
The treasurer shall render to the chairman, president, a vice
president and the board of directors, at the regular meetings of the
board of directors, or whenever the same shall be required, an
account of all the treasurer's transactions as treasurer and of the
financial condition of the corporation. The treasurer shall give the
corporation a bond, if required by the board of directors, in such an
amount and with such surety or sureties as may be ordered by the
board, for the faithful performance of the duties of the treasurer's
office and for the restoration to the corporation, in case of the
treasurer's death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of whatever
kind in the treasurer's possession or under the treasurer's control
belonging to the corporation.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of the
treasurer shall, for the time being, devolve upon and be exercised by
an assistant treasurer, unless otherwise ordered by the board of
directors, the chairman, the president or a vice president.
SECTION 12. Each of the assistant treasurers shall assist in
the duties of the treasurer, and shall have such other powers and
duties as may be prescribed for the assistant treasurer by the board
of directors or be delegated to the assistant treasurer by the
chairman, the president or a vice president. In case of the absence,
disability, death, resignation or removal from office of the
treasurer, those powers and duties shall, for the time being, devolve
upon such one of the assistant treasurers as the board of directors,
the chairman, the president, a vice president or the treasurer may
designate, or, if there be but one assistant treasurer, then upon
such assistant treasurer; and such assistant treasurer shall
thereupon, during such period, exercise and perform all of the powers
and duties of the treasurer, except as may be otherwise provided by
the board of directors, the chairman, the president or a vice
president. Each or any assistant treasurer shall likewise give the
corporation a bond, if required by the board of directors, in such
amount and with such surety or sureties as may be ordered by the
board of directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. The comptroller shall have
executive direction of the bookkeeping and accounting departments and
shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and supplies.
The comptroller shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject at
all times to the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of the
comptroller, the powers and duties of the comptroller shall be
delegated by the board of directors, the chairman, the president or a
vice president.
SECTION 14. The auditor (if an auditor be elected or appointed
by the board of directors) shall have charge of the investigation of
all accounts and records of the corporation pertaining to moneys,
properties and supplies, for the purpose of establishing their
correctness. The auditor shall examine the accounts of all officers
and employees from time to time, as often as practicable and shall
see that proper returns are made of all receipts from all sources and
that correct vouchers are provided for disbursements for any purpose.
The auditor shall have such other powers and duties as are commonly
incident to the office of auditor of a corporation, subject at all
times to the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated by
the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall be
approved by the board of directors, shall be numbered consecutively
as issued, shall state the name of the registered holder, the number
of shares represented thereby, and such other matters and things as
are required by law or by the articles of incorporation to be stated
in such certificate. Each such certificate shall be signed by the
chairman, the president or a vice president and the secretary or an
assistant secretary of the corporation. In any case where such a
certificate is also signed by a transfer agent and a registrar or
either of them, the respective signatures of the chairman, president
or a vice president and of the secretary or an assistant secretary
thereon may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be entered
in the books of the corporation as they are issued, and shall be
transferable on the books of the corporation by the holder thereof in
person, or by his, her or its attorney duly authorized thereto in
writing, upon the surrender of the outstanding certificate therefor
properly endorsed.
SECTION 3. The corporation and its officers shall be entitled
to treat the holder of record of any share or shares of stock of the
corporation 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 or shares on the part of any other person or persons,
whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of Indiana, or except as in the
articles of incorporation or in these by-laws provided to the
contrary.
SECTION 4. Shares of the capital stock of the corporation may
be issued and disposed of by the corporation from time to time for
such consideration as may be fixed from time to time by resolution of
the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by resolution
of the board of directors, either wholly or partly in money, labor or
property. Said payments shall be made within such time and in such
installments or upon such terms as the board of directors may from
time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records of
the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from time
to time by resolution determine.
SECTION 2. The original or duplicate stock register or transfer
book, or, in case a stock registrar or transfer agent shall be
employed by the corporation either within or without the state of
Indiana, a complete and accurate shareholders' list, alphabetically
arranged, giving the names and addresses of all shareholders, the
number and classes of shares held by each and the time each became
the record owner of the shareholder's shares, shall be kept at the
principal office of the corporation in the state of Indiana.
SECTION 3. The stock transfer books of the corporation may from
time to time be closed by order of the board of directors for any
lawful purpose, and for such periods consistent with law, but not
exceeding seventy days at any one time, as the board of directors may
deem advisable. In lieu of closing the stock transfer books as
aforesaid, the board of directors may, in its discretion, fix in
advance a date not exceeding seventy days (or such lesser number of
days as may in any case be the maximum number allowed under any
applicable statute) next preceding the date of any meeting of
shareholders or the date for the payment of any dividend or the date
for the allotment of rights or the date when any change or conversion
or exchange of capital stock shall go into effect, as the record date
for the determination of the shareholders entitled to notice of and
to vote at any such meeting or entitled to receive any such dividend
or to any such allotment of rights or to exercise the rights in
respect of any such change, conversion or exchange of capital stock;
and, in such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as the
case may be, notwithstanding any transfer of stock on the books of
the corporation after such record date fixed as aforesaid.
SECTION 4. All books and records of the corporation shall be
kept and maintained in such manner and for such periods as required
by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be signed by
one or more of such officers or other employees of this corporation
and the signature of any such officer or other employee may be a
facsimile signature, all as the board of directors shall at any time
and from time to time by resolution or resolutions specify; provided,
however, that in the cases of drafts not exceeding $3,000 for any one
such draft, used by this corporation, the board of directors may
empower the chairman, the president and a vice president, or any of
them, to designate in writing the one or more officers or other
employees authorized to sign such drafts. To the extent that the
board of directors may by resolution or resolutions authorize from
time to time, the signature of this corporation on checks of this
corporation which are used solely for the purpose of transferring
funds from the account of this corporation in any bank or trust
company to the account of this corporation in any other bank or trust
company may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws, (i)
all deeds and mortgages made by this corporation shall be executed in
its name by the president or a vice president and shall be attested
by the secretary or an assistant secretary, and (ii) all other
written agreements to which this corporation shall be a party shall
be executed in its name by the chairman, the president or a vice
president, and may be (but need not be) attested by the secretary or
an assistant secretary. Notwithstanding the immediately preceding
sentence of this Section 2, written agreements of this corporation
(other than deeds and mortgages made by this corporation), which
pertain to the routine operations of this corporation and are
regularly being made in the ordinary course of carrying on such
operations, may be executed for and on behalf of this corporation by
any officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or persons
may, from time to time, be so authorized to act by either resolution
of the board of directors or by written authorization of an officer
of this corporation who has been authorized by resolution of the
board of directors to execute such written authorization.
SECTION 3. Subject always to the further orders and directions
of the board of directors, any share or shares of stock issued by any
corporation and owned by this corporation (including reacquired
shares of stock of this corporation) may, for sale or transfer, be
endorsed in the name of this corporation by the chairman, the
president or a vice president of this corporation, and said
endorsement shall be duly attested by the secretary or an assistant
secretary of this corporation.
SECTION 4. Subject always to the further orders and directions
of the board of directors, any share or shares of stock issued by any
other corporation and owned or controlled by this corporation may be
voted at any shareholders' meeting of such other corporation by the
chairman of this corporation, if the chairman be present, or in the
chairman's absence by the president of this corporation if the
president be present, or in the absence of both such chairman and
such president by any vice president of this corporation who may be
present. Whenever, in the judgment of the chairman, the president or
a vice president of this corporation, it is desirable for this
corporation to execute a proxy or give a shareholder's consent in
respect of any share or shares of stock issued by any other
corporation and owned by this corporation, such proxy or consent
shall be executed in the name of this corporation by the chairman,
the president or a vice president of this corporation, and shall be
attested by the secretary or an assistant secretary of this
corporation. Any person or persons designated in the manner above
stated as the proxy or proxies of this corporation shall have full
right, power and authority to vote the share or shares of stock
issued by such other corporation and owned by this corporation the
same as such share or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the corporation,
when earned, may be declared by the board of directors at any annual,
regular or special meeting. Such dividends may be paid in cash, in
property or in shares of the capital stock of the corporation, in the
case of shares with par value at par, and in the case of shares
without par value at such price as may be fixed by the board of
directors.
SECTION 2. Before payment of any dividend or before making any
distribution of profits, there may be set aside out of the surplus or
net profits of the corporation such sum or sums as the board of
directors from time to time, in their absolute discretion, may deem
proper, as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
corporation, or for working capital, or for such other purpose as the
board of directors shall think conducive to the interests of the
corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as the
board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed,
in whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
ARTICLES OF INCORPORATION
OF
PSI YACYRETA, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Law as amended (hereinafter referred to as to the "Act"), execute
the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"PSI Yacyreta, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To acquire, purchase, own, and hold the
stock of other energy, environmental, or functionally related
corporations, and to do every act and thing covered generally by
the denomination "holding company," including the directing of
the operations of other corporations through the ownership of
stock therein;
(b) To engage in the construction, operation,
development, or ownership of power production, transmission and
distribution facilities;
(c) To provide energy, energy-related, and
environmental services;
(d) To engage in any other lawful energy,
environmental, or functionally related business permitted to a
corporation organized under the Act;
(e) To carry on the business of the
Corporation either within or beyond the limits of the State of
Indiana or the United States or its territories, and, in general,
to do and perform any and all things necessary, convenient, or
proper for the carrying out or accomplishment of the objects or
purposes specified in this ARTICLE II, or any of them, or any
objects or purposes incidental thereto, and to possess and enjoy
all of the rights, powers, privileges, authority, and immunities
which may be granted to bodies corporate under the Act and the
laws of the State of Indiana;
(f) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, foreign or domestic governments or other legal
entities, domestic or foreign, and to pay in whole or in part in
cash or by exchanging stocks, bonds, or other evidences of
indebtedness or securities of this or any other corporation, and
while the owner or holder of any real or personal property,
stocks, bonds, debentures, notes, evidences of indebtedness, or
other securities, contracts, or obligations, to receive, collect,
and dispose of the interest, dividends, and income arising from
the property, and to possess and exercise in respect of the same,
all the rights, powers, and privileges of ownership, including
all voting powers on any stocks so owned;
(g) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership, or corporation, foreign or domestic government or
other legal entity, domestic or foreign, any shares of stock, or
any bonds, debentures, evidences of indebtedness, or other
securities of which are held by this Corporation or in which it
shall have any interest, and to do any acts designed to protect,
preserve, improve, or enhance the value of any property at any
time held or controlled by this Corporation or in which it at
that time may be interested;
(h) To enter into, make, perform, and carry
out contracts of any kind for any lawful purpose with any
individual, association, partnership, or corporation, foreign or
domestic government, or other legal entity;
(i) To purchase, acquire, lease, own, and
enjoy any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(j) To acquire (by purchase, exchange, lease,
hire, or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development, or improvement of, or to
turn to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(k) To buy, lease, or otherwise acquire, so
far as may be permitted by law, the whole or any part of the
business, good will, and assets of any person, firm, association,
or corporation (either foreign or domestic), suitable,
convenient, advantageous, or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote, and participate in
financial, commercial, mercantile, and other business, works,
contracts, undertakings, and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Cheryl M. Foley, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 251 North Illinois Street, Suite 1410,
Indianapolis, Indiana 46204.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Cumulative Preferred Stock,
$100 par value. Shares of the Common Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors. Authority is hereby expressly granted to the
Board of Directors or a committee thereof to authorize the issue
of shares of Cumulative Preferred Stock in one or more series,
and to determine and state, by the resolution or resolutions
authorizing the issue of each series of Cumulative Preferred
Stock, the designation of such series and the relative rights
(other than voting rights), preferences, qualifications,
limitations and restrictions of such series.
B. Voting Rights of Cumulative Preferred Stock.
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (b) shall not without, but may with, the affirmative
vote by the record holders of the Cumulative Preferred Stock
(given at an annual or special meeting) in such number of votes
as is at least two-thirds of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the
Corporation Available for the Payment of Interest Charges for any
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the month within which such
additional shares of the Cumulative Preferred Stock or shares of
stock on a parity therewith or securities convertible into such
shares are proposed to be issued, shall have been at least one
and one-half times the aggregate of (x) the dividend requirements
for a twelve months' period upon all shares of the Cumulative
Preferred Stock and stock, if any, ranking prior to or on a
parity with the Cumulative Preferred Stock as to dividends or
assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the
interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the
issuance of the shares or convertible securities proposed to be
issued, and
(B) the Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) The Corporation shall not declare any
dividend or make any distribution in request of any stock of this
Corporation ranking junior to the Cumulative Preferred Stock as
to dividends or assets, other than dividends in shares of junior
stock, or purchase or otherwise acquire for value any outstanding
shares of junior stock (each such dividend, distribution,
purchase or acquisition being herein called a junior stock
dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity.
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Other Provisions.
1. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
2. The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
3. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Cheryl M. Foley _______
Cheryl M. Foley
DATED: September 8, 1994
This instrument prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
PSI YACYRETA, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of PSI Yacyreta, Inc. shall
be at 251 North Illinois Street, Suite 1410, Indianapolis,
Indiana 46204; and the corporation may have such other offices at
such other places as the board of directors may from time to time
designate, or as the business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the city of Indianapolis,
Indiana, or at such other place within or outside the state of
Indiana through the use of any means of communication by which
all shareholders participating may simultaneously hear each other
at the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in the shareholder's name on the books of the
corporation, except as otherwise provided by law or by the
articles of incorporation and except that no shares shall be
voted at any meeting upon which any installment is due and
unpaid, or which belongs to the corporation, or which shall have
been transferred on the books of the corporation within such
number of days, not exceeding seventy, next preceding the date of
such meeting as the board of directors shall determine, or, in
the absence of such determination, within ten days next preceding
the date of such meeting. At any adjourned meeting of
shareholders, the board of directors shall fix a record date for
shareholders entitled to vote at such adjourned meeting which
must be a new date if the meeting is adjourned for more than one
hundred twenty days.
A plurality vote shall be sufficient to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote at such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by an inspector,
(ii) where voting is to be by ballot on any question, the polls
shall be opened and closed and the ballots shall be taken in
charge by such inspector, and (iii) all questions touching the
qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by such
inspector. Such inspector may be appointed by the board of
directors before such meeting, or, if no such appointment shall
have been made, then by the presiding officer at such meeting.
In the event for any reason the inspector previously appointed
shall fail to attend such meeting, or being present will not or
cannot act in such capacity, then an inspector in place of such
inspector failing to attend or not acting shall be appointed by
the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the person
to act as inspector at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided however, that nothing in this Article II shall be deemed
to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and any such business not properly brought
before the annual meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if the
chairman should so determine, the chairman shall so declare to
the annual meeting, and the defective nomination shall be
disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than two (2) nor more than nine (9) directors. A director shall
hold office until the annual meeting for the year in which the
director's term expires and until the director's successor shall
be elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in these by-laws, disqualification or removal from
office. Any vacancy on the board of directors that results from
other than an increase in the number of directors may be filled
by a majority of the board of directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the board of directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. The chairman shall,
when present, preside at all meetings of the shareholders and, in
the absence of the chairman, the president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the chairman shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
chairman, the powers and duties of the chairman shall, for the
time being, devolve upon and be exercised by the president,
unless otherwise ordered by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for the
president by the board of directors or the chairman. The
president shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by a vice president,
unless otherwise ordered by the board of directors or the
chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. The
vice president and general manager shall, subject to the other
provisions of these by-laws, have such other powers and perform
such other duties as usually devolve upon the vice president and
general manager of a corporation, and such further duties as may
be prescribed for the president and general manager by the board
of directors, the chairman or the president. The vice president
and general manager shall report to the chairman. In case of the
absence, disability, death, resignation or removal from office of
the vice president and general manager, the powers and duties of
the vice president and general manager shall, for the time being,
devolve upon and be exercised by the president, unless otherwise
ordered by the board of directors, the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the secretary, the powers and duties of the secretary shall, for
the time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the chairman, the president or a vice president.
SECTION 10. Each of the assistant secretaries shall assist
in the secretarial duties and shall have such other powers and
duties as may be prescribed for such assistant secretary by the
board of directors, or be delegated to such assistant secretary
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the secretary, those powers and duties shall, for the
time being, devolve upon such one of the assistant secretaries as
the board of directors, the chairman, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and such
assistant secretary shall thereupon, during such period, exercise
and perform all of the powers and duties of the secretary, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. The
treasurer shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. The
treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper receipts or
making proper vouchers for such disbursements and shall preserve
the same at all times during the treasurer's term of office.
When necessary or proper, the treasurer shall endorse on behalf
of the corporation all checks, notes or other obligations payable
to the corporation or coming into the treasurer's possession for
or on behalf of the corporation and shall deposit the funds
arising therefrom together with all other funds and valuable
effects of the corporation coming into the treasurer's possession
in the name and to the credit of the corporation in such
depositories as the board of directors from time to time, by
resolution, shall direct. The treasurer shall have such other
powers and duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
The treasurer shall render to the chairman, president, a
vice president and the board of directors, at the regular
meetings of the board of directors, or whenever the same shall be
required, an account of all the treasurer's transactions as
treasurer and of the financial condition of the corporation. The
treasurer shall give the corporation a bond, if required by the
board of directors, in such an amount and with such surety or
sureties as may be ordered by the board, for the faithful
performance of the duties of the treasurer's office and for the
restoration to the corporation, in case of the treasurer's death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
the treasurer's possession or under the treasurer's control
belonging to the corporation.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
in the duties of the treasurer, and shall have such other powers
and duties as may be prescribed for the assistant treasurer by
the board of directors or be delegated to the assistant treasurer
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the treasurer, those powers and duties shall, for the
time being, devolve upon such one of the assistant treasurers as
the board of directors, the chairman, the president, a vice
president or the treasurer may designate, or, if there be but one
assistant treasurer, then upon such assistant treasurer; and such
assistant treasurer shall thereupon, during such period, exercise
and perform all of the powers and duties of the treasurer, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president. Each or any
assistant treasurer shall likewise give the corporation a bond,
if required by the board of directors, in such amount and with
such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. The comptroller shall have
executive direction of the bookkeeping and accounting departments
and shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. The comptroller shall have such other powers and
duties as are incident to the office of comptroller of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the comptroller, the powers
and duties of the comptroller shall be delegated by the board of
directors, the chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. The auditor shall examine the
accounts of all officers and employees from time to time, as
often as practicable and shall see that proper returns are made
of all receipts from all sources and that correct vouchers are
provided for disbursements for any purpose. The auditor shall
have such other powers and duties as are commonly incident to the
office of auditor of a corporation, subject at all times to the
direction and control of the board of directors, the chairman,
the president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of the shareholder's
shares, shall be kept at the principal office of the corporation
in the state of Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if
the chairman be present, or in the chairman's absence by the
president of this corporation if the president be present, or in
the absence of both such chairman and such president by any vice
president of this corporation who may be present. Whenever, in
the judgment of the chairman, the president or a vice president
of this corporation, it is desirable for this corporation to
execute a proxy or give a shareholder's consent in respect of any
share or shares of stock issued by any other corporation and
owned by this corporation, such proxy or consent shall be
executed in the name of this corporation by the chairman, the
president or a vice president of this corporation, and shall be
attested by the secretary or an assistant secretary of this
corporation. Any person or persons designated in the manner
above stated as the proxy or proxies of this corporation shall
have full right, power and authority to vote the share or shares
of stock issued by such other corporation and owned by this
corporation the same as such share or shares might be voted by
this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors from time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or
repealed, in whole or in part, and new by-laws may be adopted at
any annual, regular or special meeting of the board of directors
by the affirmative vote of a majority of the members of the board
of directors.
ARTICLES OF INCORPORATION
OF
POWER EQUIPMENT SUPPLY CO.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"Power Equipment Supply Co."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in utility and industrial salvage
service. To buy, sell or deal in utility or industrial scrap or
salvage materials. To erect, install, dismantle, salvage and
scrap new or used electric utility supplies, material and
equipment;
(b) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act;
(c) To carry on the business of the Corporation
either within or beyond the limits of the State of Indiana, and,
in general, to do and perform any and all things necessary,
covenient or proper for the carrying out or accomplishment of the
objects or purposes specified in this ARTICLE II, or any of them,
or any objects or purposes incidental thereto, and to possess and
enjoy all of the rights, powers, privileges, authority and
immunities which may be granted to bodies corporate under the Act
and the laws of the State of Indiana;
(d) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere;
(e) To manufacture, assemble, buy, lease, rent or
otherwise acquire, sell, exchange, mortgage, lease or otherwise
dispose of, store, repair, operate, export, import and generally
deal in and with, machines, and machinery, as well as apparatus,
equipment, devices and appliances of every kind and description,
and all the parts, supplies and accessories therefor, and to
promote, operate and manage for others all of the foregoing, or
any of them;
(f) To purchase, subscribe for, or otherwise
acquire and own, hold, use, sell, assign, transfer, mortgage,
pledge, exchange, or otherwise dispose of real and personal
property of every kind, including shares of stock, bonds,
debentures, notes, evidences of indebtedness, and other
securities, contracts, or obligations of any corporation or
corporations, association or associations, partnership or
partnerships, governments or other legal entities, domestic or
foreign, and to pay in whole or in part in cash or by exchanging
stocks, bonds, or other evidences of indebtedness or securities
of this or any other corporation, and while the owner or holder
of any real or personal property, stocks, bonds, debentures,
notes, evidences of indebtedness or other securities, contracts,
or obligations, to receive, collect, and dispose of the interest,
dividends and income arising from the property, and to possess
and exercise in respect of the same, all the rights, powers and
privileges of ownership, including all voting powers on any
stocks so owned;
(g) To aid either by loans or by guaranty of
securities or in any other manner, any individual, association,
partnership or corporation, government or other legal entity,
domestic or foreign, any shares of stock, or any bonds,
debentures, evidences of indebtedness or other securities of
which are held by this Corporation or in which it shall have any
interest, and to do any acts designed to protect, preserve,
improve, or enhance the value of any property at any time held or
controlled by this Corporation or in which it at that time may be
interested;
(h) To enter into, make, perform, and carry out
contracts of any kind for any lawful purpose with any individual,
association, partnership or corporation, government or other
legal entity;
(j) To purchase, acquire, lease, own, and enjoy
any other property, real and personal, as may be reasonably
necessary for the carrying on of the business of the Corporation;
(j) To acquire (by purchase, exchange, lease,
hire or otherwise), own, hold, develop, operate, sell, lease,
assign, transfer, convey, exchange, mortgage, pledge, or
otherwise dispose of, or encumber, and to aid and subscribe
toward the acquisition, development or improvement of, or to turn
to account, and convey, real and personal property, of every
class and description, and rights and privileges therein, in the
State of Indiana or elsewhere; and
(k) To buy, lease, or otherwise acquire, so far
as may be permitted by law, the whole or any part of the
business, good will and assets of any person, firm, association
or corporation (either foreign or domestic), suitable,
convenient, advantageous or necessary for the business of the
Corporation; and generally, as principal or agent, to institute,
enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Jon D. Noland, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Preferred Stock, $100 par
value. The designations, relative rights, preferences,
qualifications, limitations and restrictions (other than voting
rights) which shall attach to said Cumulative Preferred Stock and
Common Stock, respectively, shall be as hereinafter provided.
B. Preferred Stock.
The Corporation shall have the right to issue the
Cumulative Preferred Stock in series, each of which series shall
have such designation and such relative rights, preferences,
qualifications, limitations and restrictions as are stated or
expressed in these Articles of Incorporation, and, to the extent
permitted by these Articles of Incorporation, as are determined
and stated by the Board of Directors or a committee thereof in
and by the resolution or resolutions authorizing the issue of
shares of such series. All shares of the Cumulative Preferred
Stock shall be of equal rank and shall be identical, except in
respect of the particulars that may be fixed by the Board of
Directors as hereinafter in this ARTICLE V (B) provided, and in
respect of the voting rights which shall be as provided for in
ARTICLE V (B) (iii) hereof; and each share of each series shall
be identical in all respects with the other shares of such
series, except as to the dates from which dividends thereon shall
be cumulative. Shares of Cumulative Preferred Stock shall be
issued only as fully paid and nonassessble shares.
(i) Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the Board of
Directors or a committee thereof to authorize the issue of shares
of Cumulative Preferred Stock in one or more series, and to
determine and state, by the resolution or resolutions authorizing
the issue of each series of Cumulative Preferred Stock, the
designation of such series and the relative rights (other than
voting rights), preferences, qualifications, limitations and
restrictions of such series, in respect of the matters set forth
in the following subparagraphs designated (a) to (h), both
inclusive:
(a) The designation of the series and the number
of shares which shall constitute such series, which number may be
varied from time to time by like action of the Board of Directors
or a committee thereof.
(b) The annual rate of dividends payable on
shares of such series and the date from which dividends on all
shares of such series issued prior to the record date for the
first dividend on shares of such series shall be cumulative.
(c) The dates on which dividends, if declared,
shall be payable, which shall be quarterly.
(d) The price or prices per share at which the
shares of such series shall be redeemable, which price shall not
in the case of any series be more than one hundred twelve
percentum (112%) of the par value thereof, plus accrued dividends
to the date of redemption.
(e) Whether or not the shares of such series
shall be entitled to the benefits of a sinking fund to be applied
to the purchase or redemption of shares of such series, and if
such sinking fund is to be established, the terms and provisions
governing the operation thereof. Installments for any such
sinking fund may be made payable in priority to any dividends
upon any stock of the Corporation which is junior to the
Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to
as "junior to" or "ranking junior to" the Cumulative Preferred
Stock).
(f) Whether or not the shares of such series
shall be made convertible into or exchangeable for shares of any
other class or of any other series of the same class of shares of
the Corporation, and if made convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the
adjustments, if any, at which such conversion or exchange may be
made.
(g) The amount payable on shares of such series
in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation, which amount may differ in the case
of a voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Corporation.
(h) Any other rights (other than voting rights),
preferences, qualifications, limitations and restrictions in
respect of shares of such series, which are not in conflict with
the rights (other than voting rights), preferences,
qualifications, limitations and restrictions expressly provided
in this ARTICLE V (B) (i).
(ii) General Provisions:
The following provisions shall apply to all the
Cumulative Preferred Stock of the Corporation irrespective of
series:
(a) The record holders of the Cumulative
Preferred Stock of each series, in preference to the holders of
any class of stock ranking junior to the Cumulative Preferred
Stock, shall be entitled to receive, when and as declared by the
Board of Directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding twenty (20) days prior to such
payment dates, fixed by the Board of Directors for such purpose.
Such dividends shall be cumulative, in the case of shares of each
particular series:
(I) if issued prior to the record date for
the first dividend on shares of such series, then from the date
fixed for the purpose by the Board of Directors as provided in
this ARTICLE V (B);
(II) if issued during the period commencing
immediately after the record date for a dividend on shares of
such series and terminating at the close of the payment date for
such dividend, then from such dividend payment date; and
(III) otherwise from the quarterly dividend
payment date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared
or set apart for payment upon, any share of Cumulative Preferred
Stock of any series for any quarterly dividend period unless at
the same time a like proportionate dividend for the same
quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment upon, all shares of
Cumulative Preferred Stock of all series then issued and
outstanding and entitled to receive such dividend. In no event,
so long as any shares of Cumulative Preferred Stock shall be
outstanding, shall any dividend, whether in cash or property, be
paid or declared, or shall any distribution be made on any class
of stock of the Corporation ranking junior to the Cumulative
Preferred Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Cumulative Preferred
Stock of all series for all past quarterly dividend periods and
for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment. The provisions of the immediately preceding sentence
shall not, however, apply to a dividend with respect to any such
junior stock, payable in any class of stock ranking junior to the
Cumulative Preferred Stock, or to the acquisition of shares of
any such junior stock in exchange for, or through application of
the proceeds of the sale of, shares of any such junior stock.
Subject to the foregoing and to the provisions of ARTICLE V (C),
and to any further limitations prescribed in accordance with the
provisions of subdivision (i) (h) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), the Board of Directors
may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Cumulative Preferred Stock, and no holders
of shares of Cumulative Preferred Stock of any series shall be
entitled to share therein.
(b) In the event of any dissolution, liquidation
or winding up of the affairs of the Corporation, then, before any
distribution or payment shall be made to the holders of any class
of stock ranking junior to the Cumulative Preferred Stock, the
holders of the Cumulative Preferred Stock shall be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (i) (g) under "Grant of Authority to
Board of Directors" in this ARTICLE V (B), together with a sum,
in the case of each share, computed at the annual dividend rate
for the series of which the particular share is a part, from the
date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or for which moneys for payment in full have been
set apart and remain available for payment. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, or moneys made available for such payment in
full, the remaining assets and funds of the Corporation shall be
distributed among the holders of the classes of stock ranking
junior to the Cumulative Preferred Stock, according to their
respective rights and preferences and in each case according to
their respective shares. If, upon any dissolution, liquidation
or winding up of the affairs of the Corporation, the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding shares of Cumulative
Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets
in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or
reorganization of the Corporation with any other corporation or
corporations, or a reorganization of the Corporation alone, or a
sale of all or substantially all of the assets of the
Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(c) The Cumulative Preferred Stock of any series
may be redeemed, as a whole or in part, at the option of the
Corporation by vote of its Board of Directors, at any time or
from time to time, at the applicable redemption price for such
series fixed in accordance with the provisions of subdivision (i)
(d) under "Grant of Authority to Board of Directors" in this
ARTICLE V (B), together with an amount (hereinafter referred to
as "accrued dividends to the redemption date") in the case of
each share, computed at the annual dividend rate for the series
of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the
date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or for which monies for
payment in full have been set apart and remain available for
payment. If less than all the outstanding shares of Cumulative
Preferred Stock of any series are to be redeemed, the shares to
be redeemed shall be determined by lot in such manner as the
Board of Directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of
redemption, (b) the designation of the series of Cumulative
Preferred Stock to be redeemed, (c) if less than all the
outstanding Cumulative Preferred Stock of such series is called
for redemption, appropriate specifications of the shares to be
redeemed as determined by the Board of Directors, (d) the place
of redemption of such series, and (e) the redemption price of the
shares to be redeemed. Copies of such notice shall be mailed,
addressed to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear on the stock
books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for such redemption) and such notice
shall also be published once each week for at least two
successive weeks (in each case on any business day of the week)
in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago,
Illinois, and in one daily newspaper printed in the English
language and published and of general circulation in the Borough
of Manhattan, The City of New York, State of New York, the first
publication in each such newspaper and such mailing to be at
least thirty (30) days and not more than sixty (60) days prior to
the date fixed for redemption. If notice of redemption shall
have been duly published and if, on or before the redemption date
specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company
of the character described in the immediately succeeding sentence
and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so
as to be and continue to be available therefor, then, from and
after the date of redemption so designated, notwithstanding that
any certificate for shares of Cumulative Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be
deemed outstanding, the dividends thereon shall cease to
accumulate, and all rights with respect to the shares of
Cumulative Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate, except only
the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also,
at any time prior to the redemption date specified in the notice
of redemption, deposit in trust, for the account of the holders
of the Cumulative Preferred Stock to be redeemed, with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of Illinois, doing
business in the City of Chicago, Illinois, having capital,
surplus and undivided profits aggregating at least two million
dollars ($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on
behalf and at the expense of the Corporation, to cause notice of
redemption to be duly mailed and publication of the notice to be
made as herein provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any certificate
for shares of Cumulative Preferred Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Cumulative Preferred Stock with respect to which the deposit
shall have been made shall no longer be deemed to be outstanding,
and all rights with respect to such shares of Cumulative
Preferred Stock shall forthwith, upon such deposit in trust
accompanied by irrevocable instructions as provided above, cease
and terminate except only the right of the holders thereof to
receive from such bank or trust company, at any time after the
time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or before
the date fixed for redemption, privileges of conversion or
exchange, if any, not theretofore expiring. Any moneys deposited
by the Corporation pursuant to this subparagraph (ii) (c) which
shall not be required for the redemption because of the exercise
of any such right of conversion or exchange subsequent to the
date of the deposit shall be repaid to the Corporation forthwith.
Any other moneys deposited by the Corporation pursuant to this
subparagraph (ii) (c) and unclaimed at the end of six years from
the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of
Directors, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for the
payment thereof.
(iii) Voting Rights of Cumulative Preferred Stock:
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B) (iii);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (b) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is at least two-thirds of the aggregate number
of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding
Cumulative Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) The Net Earnings of the Corporation
Available for the Payment of Interest Charges for any twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the month within which such additional
shares of the Cumulative Preferred Stock or shares of stock on a
parity therewith or securities convertible into such shares are
proposed to be issued, shall have been at least one and one-half
times the aggregate of (x) the dividend requirements for a twelve
months' period upon all shares of the Cumulative Preferred Stock
and stock, if any, ranking prior to or on a parity with the
Cumulative Preferred Stock as to dividends or assets, to be
outstanding after the issuance of the shares or convertible
securities proposed to be issued, and (y) the interest
requirements for a twelve months' period upon all indebtedness of
the Corporation to be outstanding after the issuance of the
shares or convertible securities proposed to be issued, and
(B) The Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (iii) (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) For the purpose of ARTICLE V (c) of
these Articles of Incorporation, the Corporation shall not
declare any dividend or make any distribution in request of any
stock of this Corporation ranking junior to the Cumulative
Preferred Stock as to dividends or assets, other than dividends
in shares of junior stock, or purchase or otherwise acquire for
value any outstanding shares of junior stock (each such dividend,
distribution, purchase or acquisition being herein called a
junior stock dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof;
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity; and
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Common Stock.
1. After the requirements with respect to preferential
dividends on Preferred Stock (fixed in accordance with the
provisions of Section B of this ARTICLE V), if any, shall have
been met and after the Corporation shall have complied with all
the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of Section B of this ARTICLE V)
and subject further to any other conditions which may be fixed in
accordance with the provisions of Section B of this ARTICLE V,
then, but not otherwise, the holders of Common Stock shall be
entitled to receive such dividends, if any, as may be declared
from time to time by the Board of Directors.
2. After distribution in full of the preferential
amount (fixed in accordance with the provisions of Section B of
this ARTICLE V), if any, to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up of the Corporation, the holders of the Common Stock
shall be entitled to receive all the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to shareholders, ratably in proportion to the
number of shares of Common Stock held by each.
3. Except as may otherwise be required by law or these
Articles of Incorporation, each holder of Common Stock shall have
one vote in respect of each share of Common Stock held by such
holder on each matter voted upon by the shareholders and any such
right to vote shall not be cumulative.
D. Other Provisions.
1. Shares of the Common Stock may be issued from time
to time as the Board of Directors shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors.
2. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
3. The Corporation reserves the right to increase or
decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
4. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Jon D. Noland, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
Jon D. Noland______________________
Jon D. Noland
DATED: Jan. 22, 1990
This instrument prepared by:
Greg K. Kimberlin
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
By-laws of
Power Equipment Supply Co.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the Power Equipment
Supply Co. shall be at 1000 East Main Street, in the town of
Plainfield, county of Hendricks and state of Indiana; and the
corporation may have such other offices at such other places as
the board of directors may from time to time designate, or as the
business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the town of Plainfield, Indiana,
or at such other place within or outside the state of Indiana
through the use of any means of communication by which all
shareholders participating may simultaneously hear each other at
the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
Voting for directors and, upon the demand of any
shareholder, voting upon any other question shall be by ballot.
On any vote by ballot, each ballot voted shall be signed either
by the shareholder voting the same, or, if the proxy of such
shareholder is on file with the secretary and unrevoked, by the
duly appointed agent or attorney of such shareholder. The ballot
of each shareholder voting shall be deemed to be a vote of all
the shares owned of record by such shareholder and entitled to be
voted on the matter unless such shareholder or his duly appointed
agent or attorney shall designate on such ballot that a lesser
number of shares are voted. A plurality vote shall be sufficient
to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws. To be properly brought before the
annual meeting, business must be either (a) specified in the
notice of the annual meeting (or any supplement thereto) given by
or at the direction of the board, (b) otherwise properly brought
before the annual meeting by or at the direction of the board, or
(c) otherwise properly brought before the annual meeting by a
shareholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice
thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation
not less than fifty days nor more than seventy-five days prior to
the annual meeting; provided, however, that in the event that
less than sixty-five days' notice or prior public disclosure of
the date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth day following
the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made, whichever first
occurs. A shareholder's notice to the secretary shall set forth
as to each matter the shareholder proposes to bring before the
annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for
conducting such business, at the annual meeting, (ii) the name
and record address of the shareholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II. Such
nominations, other than those made by or at the direction of the
board, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a shareholder's
notice shall be delivered to or mailed and received at the
principal executive offices of the corporation not less than
fifty days nor more than seventy-five days prior to the annual
meeting; provided, however, that in the event that less than
sixty-five days' notice or prior public disclosure of the date of
the annual meeting is given or made to shareholders, notice to
the secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by
the person, (iv) a written statement that the person is willing
to serve as a director filed with the secretary at least five (5)
days prior to the date of the annual meeting and (v) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors
pursuant to Rule 14a under the Securities Exchange Act of 1934,
as amended; and (b) as to the shareholder giving the notice (i)
the name and record address of the shareholder, and (ii) the
class and number of shares of capital stock of the corporation
which are beneficially owned by the shareholder. The corporation
may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as
director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than three (3) nor more than nine (9) directors. A director
shall hold office until the annual meeting for the year in which
his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
SECTION 10. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate not less than three of their number who shall not be
officers of the corporation, to constitute an audit committee.
Such committee shall recommend the appointment of independent
certified public accountants annually to audit the books and
records of the corporation; shall receive and examine the audit
reports of such independent certified public accountants; shall
inquire into the effectiveness of the corporation's financial and
accounting functions and controls; and may make appropriate
reports and other related recommendations to the board of
directors.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman, the president or a vice president shall not be
performed by the same person who performs the duties of
secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. He shall, when present,
preside at all meetings of the shareholders and, in the absence
of the chairman, the president shall preside at all meetings of
the board of directors. When the board of directors is not in
session, the chairman shall have authority to suspend the
authority of any other officer or officers of the corporation;
subject, however, to the pleasure of the board of directors at
its next meeting. In the case of the absence, disability, death,
resignation or removal from office of the chairman, the powers
and duties of the chairman shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for him by
the board of directors or the chairman. He shall report to the
chairman. In case of the absence, disability, death, resignation
or removal from office of the president, the powers and duties of
the president shall, for the time being, devolve upon and be
exercised by a vice president, unless otherwise ordered by the
board of directors or the chairman.
SECTION 8. The vice president and general manager shall,
subject to the control of the board of directors, the chairman
and the president have general supervision over the management
and direction of the affairs of the corporation, and supervision
of all departments and of all officers of the corporation. He
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the vice president and general manager of a
corporation, and such further duties as may be prescribed for him
by the board of directors, the chairman or the president. He
shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the vice
president and general manager, the powers and duties of the vice
president and general manager shall, for the time being, devolve
upon and be exercised by the president, unless otherwise ordered
by the board of directors, or the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. He shall
attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
He shall give or cause to be given notice of all meetings of the
shareholders and the board of directors when such notice shall be
required. He shall file and take charge of all papers and
documents belonging to the corporation and shall have such other
powers and duties as are incident to the office of secretary of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, the powers
and duties of the secretary shall, for the time being, devolve
upon and be exercised by an assistant secretary, unless otherwise
ordered by the board of directors, the chairman, the president or
a vice president.
SECTION 10. Each of the assistant secretaries shall assist
the secretary in his duties and shall have such other powers and
duties as may be prescribed for him by the board of directors, or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the secretary, his powers
and duties shall, for the time being, devolve upon such one of
the assistant secretaries as the board of directors, the
chairman, the president, a vice president or the secretary may
designate, or, if there be but one assistant secretary, then upon
such assistant secretary; and he shall thereupon, during such
period, exercise and perform all of the powers and duties of the
secretary, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. He
shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall
disburse the funds of the corporation as may be ordered by the
board of directors, taking proper receipts or making proper
vouchers for such disbursements and shall preserve the same at
all times during his term of office. When necessary or proper,
he shall endorse on behalf of the corporation all checks, notes
or other obligations payable to the corporation or coming into
his possession for or on behalf of the corporation and shall
deposit the funds arising therefrom together with all other funds
and valuable effects of the corporation coming into his
possession in the name and to the credit of the corporation in
such depositories as the board of directors from time to time, by
resolution, shall direct. He shall have such other powers and
duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
He shall render to the chairman, president, a vice president
and the board of directors, at the regular meetings of the board
of directors, or whenever the same shall be required, an account
of all his transactions as treasurer and of the financial
condition of the corporation. He shall give the corporation a
bond, if required by the board of directors, in such an amount
and with such surety or sureties as may be ordered by 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.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
the treasurer in his duties, and shall have such other powers and
duties as may be prescribed for him by the board of directors or
be delegated to him by the chairman, the president or a vice
president. In case of the absence, disability, death,
resignation or removal from office of the treasurer, his powers
and duties shall, for the time being, devolve upon such one of
the assistant treasurers as the board of directors, the chairman,
the president, a vice president or the treasurer may designate,
or, if there be but one assistant treasurer, then upon such
assistant treasurer; and he shall thereupon, during such period,
exercise and perform all of the powers and duties of the
treasurer, except as may be otherwise provided by the board of
directors, the chairman, the president or a vice president. Each
or any assistant treasurer shall likewise give the corporation a
bond, if required by the board of directors, in such amount and
with such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. He shall have executive
direction of the bookkeeping and accounting departments and shall
have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. He shall have such other powers and duties as are
incident to the office of comptroller of a corporation, subject
at all times to the direction and control of the board of
directors, the chairman, the president and a vice president. In
case of the absence, disability, death, resignation or removal
from office of the comptroller, the powers and duties of the
comptroller shall be delegated by the board of directors, the
chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. He shall examine the accounts of
all officers and employees from time to time, as often as
practicable and shall see that proper returns are made of all
receipts from all sources and that correct vouchers are provided
for disbursements for any purpose. He shall have such other
powers and duties as are commonly incident to the office of
auditor of a corporation, subject at all times to the direction
and control of the board of directors, the chairman, the
president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or
repealed, in whole or in part, and new by-laws may be adopted at
any annual, regular or special meeting of the board of directors
by the affirmative vote of a majority of the members of the board
of directors.
ARTICLES OF INCORPORATION
OF
POWER INTERNATIONAL, INC.
The undersigned, desiring to form a corporation for profit
under Sections 1701.01 et seq. of the Ohio Revised Code, does
hereby certify:
FIRST: The name of the corporation shall be Power
International, Inc. (the "Corporation").
SECOND: The principal office of the Corporation in the
State of Ohio is to be located in the City of Cincinnati, County of
Hamilton.
THIRD: The purpose for which the Corporation is formed
is to engage in any lawful act or activity for which corporations
may be formed under the General Corporation Law of the State of
Ohio.
FOURTH: The number of shares which the Corporation is
authorized to have outstanding is Seven Hundred and Fifty (750),
all of which shall be common shares without par value.
FIFTH: To the extent permitted by law, the Corporation
may, from time to time, pursuant to authorization of the Board of
Directors and without action by the shareholders, purchase or
otherwise acquire shares of any class, bonds, debentures, notes,
script, warrants, obligations, evidences of indebtedness, or other
securities of the Corporation (or any other corporation) in such
manner, upon such terms, and in such amounts as the Board of
Directors may determine.
SIXTH: No transaction between the Corporation and any
other corporation shall in any way be affected or invalidated by
the fact that any Director of the Corporation has an interest in
such other corporation, including being a director or officer of
such corporation, provided that the fact that the interest exists
shall be disclosed or shall have been known to the Board of
Directors, or a majority thereof; any director of the Corporation
who has such an interest may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of
the Corporation which shall authorize such transactions, and may
vote thereat to authorize such transaction, with like force and
effect as if such Director were not so interested.
SEVENTH: No holders of shares of the Corporation shall
have any pre-emptive right to subscribe for or to purchase any
shares of the Corporation of any class, whether such shares or such
class be now or hereafter authorized.
EIGHTH: Any amendment hereto, including any that could
be adopted by the Board of Directors of the Corporation, may be
adopted at a meeting of shareholders held for such purpose by the
affirmative vote of the holders of shares entitled to exercise a
majority of the voting power of the Corporation on such proposal.
IN WITNESS WHEREOF, the undersigned has executed these
Articles of Incorporation this 21st day of October, 1992.
/s/ James J. Mayer______________
James J. Mayer
Incorporator
CODE OF REGULATIONS
OF
POWER INTERNATIONAL, INC.
ARTICLE I
Offices
Section 1. Offices. The location of the Corporation's
principal office shall be in the City of Cincinnati, County of
Hamilton, State of Ohio. The Corporation may, in addition to its
principal office in the State of Ohio, establish and maintain an
office or offices elsewhere in Ohio and in such other states and
places as the Board of Directors may from time to time find
necessary or desirable, at which the books, documents and papers of
the Corporation may be kept.
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting. The annual meeting of the
shareholders shall be held at the principal office of the
Corporation in Cincinnati, Ohio, on the first Wednesday in May, if
not a legal holiday, and if a legal holiday, then on the next
succeeding business day, for the election of directors, the
consideration of the reports to be laid before the meeting and the
transaction of such other business as may be brought before the
meeting.
Section 2. Notice of Annual Meeting. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days and not more than forty-five
(45) days prior to the meeting.
Section 3. Special Meetings. Special meetings of the
shareholders may be called at any time by the President or a Vice-
President or by a majority of the members of the Board of Directors
acting with or without a meeting or by the persons who hold twenty-
five (25) per cent of all the shares outstanding and entitled to
vote thereat, upon notice in writing, stating the time, place and
purpose of the meeting. Business transacted at all special
meetings shall be confined to the objects stated in the call.
Section 4. Notice of Special Meeting. Notice of special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least ten (10) days and not more than forty-five (45) days prior to
the meeting.
Section 5. Waiver of Notice. Notice of the time, place and
purpose of any meeting of shareholders may be waived by the written
assent of every shareholder entitled to notice, filed with or
entered upon the records of the meeting, either before or after the
holding thereof.
Section 6. Action Without Meeting. Any action which, under
any provision of the General Corporation Law of Ohio, or the
Articles, or the Regulations, may be taken at a meeting of the
Shareholders, may be taken without a meeting if authorized by a
writing signed by all the holders of shares who would be entitled
to notice of meeting for such purpose.
Section 7. Quorum. The holders of shares entitling them to
exercise a majority of the voting power, present in person or by
proxy at any meeting of the shareholders, unless otherwise
specified by law, shall constitute a quorum.
If, however, at any meeting of the shareholders, a quorum
shall fail to attend in person or by proxy, a majority in interest
of the shareholders attending in person or by proxy at the time and
place of such meeting may adjourn the meeting from time to time
without further notice, other than by announcement at the meeting
at which such adjournment is taken, until a quorum shall be
present. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 8. Voting. At each meeting of the shareholders,
except as otherwise provided by statute or the Articles of
Incorporation, every holder of record of stock entitled to vote at
such meeting shall be entitled to vote in person or by proxy
appointed by an instrument in writing subscribed by such
shareholder and bearing a date not more than eleven (11) months
prior to said meeting unless some other definite period of validity
shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
such stock having voting power, standing in his name on the books
of the Corporation. Cumulative voting shall be permitted only as
expressly required by statute.
At any meeting of shareholders, a list of shareholders
entitled to vote, alphabetically arranged, showing the number and
classes of shares held by each on the date fixed for closing the
books against transfers or the record date fixed as hereinbefore
provided (or if no such date has been fixed, then on the date of
the meeting) shall be produced on the request of any shareholder,
and such list shall be prima facie evidence of the ownership of
shares and of the right of shareholders to vote, when certified by
the Secretary or by the agent of the Corporation having charge of
the transfer of shares.
Section 9. Inspectors of Election. Whenever any persons
present and entitled to vote at a meeting of Shareholders shall
request the appointment of inspectors of election, the officer or
person acting as Chairman of any such meeting shall appoint three
inspectors who need not be shareholders. If the right of any
person to vote at any such meeting shall be challenged, the
inspectors of election shall determine such right. The inspectors
shall receive and count the votes either upon an election or for
the decision of any question and shall determine the result. the
decision, act or certificate of a majority of such inspectors on
any vote shall be effective in all respects as the decision, act or
certificate of all of them and shall be prima facie evidence of the
facts stated therein and of the vote as certified by them thereof.
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies. Except as
otherwise provided by statute, all the corporate powers, business
and property of the Corporation shall be exercised, conducted and
controlled by a Board of three (3) Directors, who need not be
shareholders. Each member of the Board of Directors shall be of
age and a citizen of the United States, and at least one shall be a
citizen of the State of Ohio.
The directors shall be elected annually and each director
shall continue in office until the annual meeting held next after
his election, and until his successor shall have been elected and
qualified.
Any member of the Board of Directors may resign at any time by
giving written notice to the President or to the Secretary of the
Corporation.
All vacancies occurring in the Board of Directors, may be
filled by the remaining directors at any stated or special meeting.
A director thus elected to fill any vacancy shall hold office for
the unexpired term of his predecessor and until his successor is
elected and qualifies.
Any director may be removed at any time by the affirmative
vote of a majority of the stock then issued and entitled to vote at
a special meeting of shareholders called for the purpose.
Section 2. Annual Organization Meeting. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Ohio) for the
purpose of organization, the election of officers and the trans-
action of other business. If a majority of the directors be then
present no prior notice of such meeting shall be required to be
given. The place and time of such first meeting may, however, be
fixed by written consent of a majority of the directors, or by
three (3) days written notice given by the Secretary of the
Corporation.
Section 3. Regular Meetings. Regular meetings of the Board
of Directors may be held at any reasonable time and place (either
within or without the State of Ohio), and upon such notice, as the
Board of Directors may from time to time determine.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by the President or any Vice-President
and must be called by the written request of two (2) members of the
Board of Directors.
Section 5. Notice of Meetings. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these Regulations.
Section 6. Quorum. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to
time, without notice, until a quorum be had. The act of a majority
of the Directors present at any such meeting, at which a quorum is
present shall be the act of the Board of Directors.
Section 7. Compensation of Directors. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or any of its affiliates) shall be entitled to receive
as compensation for services such amounts as may be determined from
time to time by the Board of Directors in form either in fees for
attendance at the meeting of the Board of Directors, or by payment
at the rate of a fixed sum per month or both. The same payment may
also be made to any one other than a director officially called to
attend any such meeting.
Section 8. Executive Committee. The Board of Directors may,
by resolution adopted by a majority of the whole Board, designate
annually three (3) or more of their number, to constitute an
Executive Committee, and may delegate to such committee power to
exercise in the intervals between the meetings of the Board of
Directors the powers of the Board in the management of the business
and affairs of the Corporation. Each member of the Executive
Committee shall continue to be a member thereof only during the
pleasure of a majority of the whole Board.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
Section 9. Other Committees. The Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the Board may determine.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall
be elected by the Board of Directors and consist of a President,
one or more Vice-Presidents, a Secretary, a Treasurer and such
Assistant Secretaries, Assistant Treasurers and such other officers
and agents, as from time to time, may be determined upon by the
Board of Directors. Such officers shall hold office at the
pleasure of the Board of Directors or and until their successors
are chosen and qualified. The Board of Directors may, at its
option, elect a Chairman of the Board.
Any two of the offices of Vice-President, Secretary and
Treasurer may be combined in one person. All vacancies occurring
among any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause at any
time by the affirmative vote of two-thirds of the number of
directors at a special meeting of the Board of Directors called for
the purpose.
Section 2. Subordinate Officers. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
Section 3. Chairman of the Board. The Chairman of the Board,
if there is one elected as herein provided, shall be a director and
shall preside at all meetings of the Board of Directors and shall,
subject to their direction and control, be their representative and
medium of communication, and shall perform such duties as may from
time to time be assigned to him by the Board of Directors.
Section 4. President. The President shall be a director and
shall be the chief executive officer of the Corporation. He shall
preside at all meetings of the shareholders and, in the absence or
inability to act of the Chairman of the Board, if there be one, at
all meetings of the Board of Directors. He shall have general and
active management of the business of the Corporation, shall see
that all orders and resolutions of the Board of Directors and of
the Executive Committee are carried into effect, shall be ex
officio a member of all standing committees, and shall have the
general powers and duties of supervision and management usually
vested in the office of President of a corporation.
He shall submit a report of the operations of the Corporation
for the fiscal year to the shareholders at their annual meeting and
from time to time shall report to the Board of Directors all
matters within his knowledge which the interests of the Corporation
may require to be brought to their notice.
Section 5. Vice-Presidents. The Vice-Presidents shall
perform such duties as the Board of Directors shall, from time to
time, require. In the absence or incapacity of the President, the
Vice-President designated by the President or Board of Directors or
Executive Committee shall exercise the powers and duties of the
President.
Section 6. Secretary. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
He shall see that proper notice is given of all meetings of
the shareholders of the Corporation and of the Board of Directors
and shall perform such other duties as may be prescribed from time
to time by the Board of Directors or by the President.
Assistant Secretaries. At the request of the Secretary, or in
his absence or inability to act, the Assistant Secretary or, if
there be more than one, the Assistant Secretary designated by the
Secretary, shall perform the duties of the Secretary and when so
acting shall have all the powers of and be subject to all the
restrictions of the Secretary. The Assistant Secretaries shall
perform such other duties as may from time to time be assigned to
them by the President, the Secretary, or the Board of Directors.
Section 7. The Treasurer. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation, shall deposit all moneys and other valuables in the
name and to the credit of the Corporation, in such depositories as
may be directed by the Board of Directors, shall disburse the funds
of the Corporation as may be ordered by the Board of Directors or
by the President, taking proper vouchers therefor, and shall render
to the President and directors at all regular meetings of the
Board, or whenever they may require it, and to the annual meeting
of the shareholders, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
He shall also perform such other duties as the Board of
Directors may from time to time require.
If required by the Board of Directors he shall give the
Corporation a bond in a form and in a sum with surety satisfactory
to the Board of Directors for the faithful performance of the
duties of his office and the restoration to the Corporation in the
case of his death, resignation or removal from office of all books,
papers, vouchers, money and other property of whatever kind in his
possession belonging to the Corporation.
Assistant Treasurers. At the request of the Treasurer, or in
his absence or inability to act, the Assistant Treasurer or, if
there be more than one, the Assistant Treasurer designated by the
Treasurer, shall perform the duties of the Treasurer and when so
acting shall have all the powers of and be subject to all the
restrictions of the Treasurer. The Assistant Treasurers shall
perform such other duties as may from time to time be assigned to
them by the President, the Treasurer, or the Board of Directors.
Section 8. Absence or Inability of Officer to Act. In the
case of absence or inability to act of any officer of the
Corporation, and of any person herein authorized to act in his
place, the Board of Directors may from time to time delegate the
powers or duties of such Officer to any other Officer or any
Director or other person whom they may select.
ARTICLE V
Indemnification of Directors, Officers, Employees, and
Agents
Section 1. Indemnification of Directors, Officers, Employees,
and Agents.
(A) The Corporation shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(B) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for
profit, partnership, joint venture, trust, or other enterprise,
against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall
be made in respect of any of the following:
(1) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless, and only to the
extent that the court of common pleas, or the court in which such
action or suit was brought determines upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper.
(2) Any action or suit in which the only liability asserted
against a director is pursuant to Section 1701.95 of the Revised
Code.
(C) To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in the
foregoing paragraphs of this Article, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him
in connection with the action, suit, or proceeding.
(D) Any indemnification under Paragraphs (A) and (B) of
Section 1 of this Article, unless ordered by a court, shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee,
officer, employee, or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in such
Paragraphs (A) and (B). Such determination shall be made as
follows: (1) by a majority vote of a quorum consisting of
directors of the indemnifying Corporation who were not and are not
parties to or threatened with any such action, suit, or proceeding;
(2) if the quorum described in (D)(1) of this Section is not
obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal
counsel other than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has performed services
for the Corporation or any person to be indemnified within the past
five years; (3) by the shareholders; or (4) by the court of common
pleas or the court in which such action, suit, or proceeding was
brought.
Any determination made by the disinterested directors under
(D)(1) of this Section or by independent legal counsel under (D)(2)
of this Section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
Corporation under (B) of this Section, and within 10 days after
receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
Section 2. Advances for Litigation Expenses may be Made.
Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, or agent in defending any action, suit,
or proceeding referred to in Section 1 of this Article, may be paid
by the Corporation as they are incurred in advance of the final
disposition of the action, suit, or proceeding as authorized by the
directors in the specific case upon receipt of an undertaking by or
on behalf of the director, trustee, officer, employee, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the Corporation.
Section 3. Indemnification Nonexclusive. The indemnification
provided by this Article shall not be exclusive of, and shall be in
addition to, any other rights granted to those seeking
indemnification under these Regulations, any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, trustee, officer, employee,
or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 4. Indemnity Insurance. The Corporation may purchase
and maintain insurance or furnish similar protection, including but
not limited to trust funds, letters of credit, or self-insurance,
on behalf of or for any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Section. Insurance
may be purchased from or maintained with a person in which the
Corporation has a financial interest.
Section 5. Payments of Expenses Not Limited. The
indemnification provided by Sections 1.(A) and (B) of this Article
does not limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to Sections 2, 3, and 4 of this Article.
Sections 1(A) and (B) of this Article do not create any obligation
to repay or return payments made by the Corporation pursuant to
Sections 2, 3, or 4 of this Article.
Section 6. Survival of Indemnification. As used in this
Article, references to "Corporation" include all constituent
corporations in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer,
employee, or agent of such a constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, shall stand
in the same position under this Article with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by the
President or a Vice-President and also by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer.
All certificates shall be consecutively numbered in each class of
shares. The name and address of the person owning the shares
represented thereby, with the number of such shares and the date of
issue, shall be entered on the Corporation's books.
Section 2. Transfer of Shares. Transfer of shares shall be
made upon the books of the Corporation and before a new certificate
is issued the old certificates shall be surrendered for
cancellation.
Section 3. Closing of Transfer Books or Taking Record of
Shareholders. The Board of Directors may fix a time not exceeding
forty-five (45) days preceding the date of any meeting of
shareholders or any dividend payment date or any date for the
allotment of rights as a record date for the determination of the
shareholders entitled to notice of such meeting or to vote thereat
or to receive such dividends or rights as the case may be; or the
Board of Directors may close the books of the Corporation against
transfer of shares during the whole or any part of such period.
Section 4. Lost Stock Certificates. In the case of a lost
stock certificate a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
Section 1. Dividends. Dividends may be declared by the Board
of Directors and paid in cash, shares, or other property out of the
annual net income of the Corporation or out of its net assets in
excess of its capital, computed in accordance with the state
statutes and subject to the conditions and limitations imposed by
the Articles of Incorporation.
Before payment of any dividends or making distribution of any
profits there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of Directors
from time to time in their absolute discretion think proper as a
reserve fund for any proper purpose.
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc. All contracts and
agreements authorized by the Board of Directors and all deeds,
mortgages, bonds and notes shall, unless otherwise directed by the
Board of Directors or unless otherwise required by law, be signed
by (1) either the President or a Vice-President and (2) any one of
the following officers: Secretary or Assistant Secretary,
Treasurer or Assistant Treasurer. The Board of Directors may by
resolution adopted at any meeting designate officers of the
Corporation who may in the name of the Corporation execute checks,
drafts and orders for the payment of money in its behalf and, in
the discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice. Any notice required
to be given by these Regulations to a director or officer may be
given in writing, personally served or through the United States
Mail, or by telephone, telecopy, telegram, cablegram or radiogram,
and such notice shall be deemed to be given at the time when the
same shall be thus transmitted. Any notice required to be given by
these Regulations may be waived by the person entitled to such
notice.
ARTICLE XI
Amendment
Section 1. Amendment. These Regulations may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise two-thirds of the
voting power on such proposal.
ARTICLES OF INCORPORATION
OF
WHOLESALE POWER SERVICES, INC.
The undersigned incorporator, desiring to form a
corporation (hereinafter referred to as the "Corporation")
pursuant to the provisions of the Indiana Business Corporation
Act as amended (hereinafter referred to as to the "Act"),
executes the following Articles of Incorporation:
ARTICLE I
Name
The name of the Corporation is:
"Wholesale Power Services, Inc."
ARTICLE II
Purposes
The purposes for which the Corporation is formed are:
(a) To engage in the business of brokering power,
emission allowances, electricity futures and related products and
services and provide consulting services in the wholesale power
related markets as well as the marketing of the Electronic
Bulletin Board "IPEX";
(b) To engage in the construction, operation,
development or ownership of cogenerating facilities or power
production facilities;
(c) To enter into joint ventures or partnership
agreements; and
(d) To engage in any other lawful energy or
functionally related business permitted to a corporation
organized under the Act; and
(e) To carry on the business of the Corporation either within or
beyond the limits of the State of Indiana, and, in general, to do
and perform any and all things necessary, convenient or proper
for the carrying out or accomplishment of the objects or purposes
specified in this ARTICLE II, or any of them, or any objects or
purposes incidental thereto, and to possess and enjoy all of the
rights, powers, privileges, authority and immunities which may be
granted to bodies corporate under the Act and the laws of the
State of Indiana.
ARTICLE III
Period of Existence
The period during which the Corporation shall continue
is perpetual.
ARTICLE IV
Resident Agent and Principal Office
A. Resident Agent.
The name and address of the Corporation's Resident
Agent for service of process is Cheryl M. Foley, 1000 East Main
Street, Plainfield, Indiana 46168.
B. Principal Office.
The post office address of the principal office of the
Corporation is 1000 East Main Street, Plainfield, Indiana 46168.
ARTICLE V
Authorized Number of Shares
A. Authorized Capital Shares.
The aggregate number of shares which the Corporation
shall have the authority to issue shall be 120,000,000 shares, of
which 100,000,000 shares shall be Common Stock, without par
value, and 20,000,000 shares shall be Cumulative Preferred Stock,
$100 par value. Shares of the Common Stock may be issued from
time to time as the Board of Directors shall determine and on
such terms and for such consideration as shall be fixed by the
Board of Directors. Authority is hereby expressly granted to the
Board of Directors or a committee thereof to authorize the issue
of shares of Cumulative Preferred Stock in one or more series,
and to determine and state, by the resolution or resolutions
authorizing the issue of each series of Cumulative Preferred
Stock, the designation of such series and the relative rights
(other than voting rights), preferences, qualifications,
limitations and restrictions of such series.
B. Voting Rights of Cumulative Preferred Stock.
(a) At all meetings of the shareholders of the
Corporation each record holder of Cumulative Preferred Stock
having a par value of $100.00 per share shall be entitled to one
vote for each share of such stock so held by him, subject,
however, to the following provisions of this ARTICLE V (B);
(b) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (b) shall not without, but may with, the affirmative
vote by the record holders of the Cumulative Preferred Stock
(given at an annual or special meeting) in such number of votes
as is at least two-thirds of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted:
(I) Create, authorize or issue shares of
stock of any class ranking prior to the Cumulative Preferred
Stock as to dividends or assets or any securities of any kind or
class convertible into shares of stock of any class ranking prior
to the Cumulative Preferred Stock as to dividends or assets; or
(II) Issue any shares of the Cumulative
Preferred Stock or shares of stock of any class ranking on a
parity with the Cumulative Preferred Stock as to dividends or
assets or securities convertible into shares of the Cumulative
Preferred Stock or stock on a parity therewith, other than in
exchange for or for the purpose of effecting the retirement, by
redemption or otherwise, of not less than a like number of shares
of the Cumulative Preferred Stock or shares of stock on a parity
therewith or securities convertible into not less than a like
number of such shares, as the case may be, at the time
outstanding, unless:
(A) the Net Earnings of the
Corporation Available for the Payment of Interest Charges for any
twelve consecutive calendar months within the fifteen calendar
months immediately preceding the month within which such
additional shares of the Cumulative Preferred Stock or shares of
stock on a parity therewith or securities convertible into such
shares are proposed to be issued, shall have been at least one
and one-half times the aggregate of (x) the dividend requirements
for a twelve months' period upon all shares of the Cumulative
Preferred Stock and stock, if any, ranking prior to or on a
parity with the Cumulative Preferred Stock as to dividends or
assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the
interest requirements for a twelve months' period upon all
indebtedness of the Corporation to be outstanding after the
issuance of the shares or convertible securities proposed to be
issued, and
(B) the Common Stock Equity shall be
not less than the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon
all shares of the Cumulative Preferred Stock and stock, if any,
ranking prior thereto or on a parity therewith, to be outstanding
after the issuance of the shares or convertible securities
proposed to be issued; or
(III) Amend the provisions of these Articles
of Incorporation so as to affect adversely any of the preferences
or other rights hereby given to the holders of shares of the
Cumulative Preferred Stock, provided, however, that if any such
amendment would be adverse to the holders of one or more, but
less than all, of the series of the Cumulative Preferred Stock at
the time outstanding, the affirmative vote hereby required shall
be only the affirmative vote by the record holders of each series
so adversely affected in such number of votes from each such
series as is at least two-thirds of the aggregate number of votes
appertaining to such series that would be voted at such meeting
if all the then outstanding shares of such series were there
voted.
No such consent of the holders of the
Cumulative Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to take
effect or when the issuance of any such stock or convertible
securities is to be made, as the case may be, provision is to be
made for the redemption of all shares of Cumulative Preferred
Stock at the time outstanding or, in the case of any such
amendment, alteration or repeal as to which the consent of less
than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise
be required.
(c) So long as any shares of the Cumulative
Preferred Stock of any series are outstanding, the Corporation
(except as otherwise provided in the last sentence of this
subparagraph (c)) shall not without, but may with, the
affirmative vote by the record holders of the Cumulative
Preferred Stock (given at an annual or special meeting) in such
number of votes as is a majority of the aggregate number of votes
appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted, merge or consolidate the
Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially
all of the assets of the Corporation, unless such merger,
consolidation or sale, or the issuance or assumption of all
securities to be issued or assumed in connection therewith, shall
have been ordered, approved or permitted by the Securities and
Exchange Commission under the Public Utility Holding Company Act
of 1935, or by any successor commission or other regulatory
authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative
Preferred Stock shall be required if, at the time of or prior to
effecting such sale, lease, conveyance, consolidation or merger,
provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding.
(d) Except when some mandatory provisions of
law shall be controlling, whenever shares of two or more series
of the Cumulative Preferred Stock are outstanding, no particular
series of the Cumulative Preferred Stock shall be entitled to
vote as a separate series on any matter and all shares of the
Cumulative Preferred Stock of all series shall be deemed to
constitute but one class for any purpose for which a vote of the
shareholders of the Corporation by classes may now or hereafter
be required.
(e) The Corporation shall not declare any
dividend or make any distribution in request of any stock of this
Corporation ranking junior to the Cumulative Preferred Stock as
to dividends or assets, other than dividends in shares of junior
stock, or purchase or otherwise acquire for value any outstanding
shares of junior stock (each such dividend, distribution,
purchase or acquisition being herein called a junior stock
dividend) in contravention of the following:
(1) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on the Common Stock is declared is, or
as a result of such dividend would become, less than 20% of Total
Capitalization, the Corporation shall not declare such dividends
in an amount which, together with all other dividends on the
Common Stock paid within the year ending with and including the
date on which such dividend is payable, exceeds 50% of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding
the calendar month in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
Common Stock which under the restrictions set forth above in this
subdivision (1) could have been, and have not been, declared; and
(2) If and so long as the Common Stock
Equity at the end of the calendar month immediately preceding the
date on which a dividend on Common Stock is declared is, or as a
result of such dividend would become, less than 25% but not less
than 20% of Total Capitalization, the Corporation shall not
declare dividends on the Common Stock in an amount which,
together with all other dividends on the Common Stock paid within
the year ending with and including the date on which such
dividend is payable, exceeds 75% of the Net Income of the
Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the Common Stock
which under the restrictions set forth above in subdivision (1)
and in this subdivision (2) could have been, and have not been,
declared.
(b) As used herein, "Common Stock Equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of Common Stock, all
earned surplus, capital or paid-in surplus, and any premiums on
the Common Stock then carried on the books of the Corporation,
less:
(1) The excess, if any, of the
aggregate amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Cumulative Preferred
Stock of the Corporation of all classes over the sum of (i) the
aggregate par or stated value of such shares and (ii) any
premiums thereon;
(2) Any amounts on the books of the
Corporation known, or estimated if not known, to represent the
excess, if any, of recorded value over original cost of used or
useful utility plant; and
(3) Any intangible items set forth on
the asset side of the balance sheet of the Corporation as the
result of accounting convention, such as unamortized debt
discount and expense; provided, however, that no deductions shall
be required to be made in respect of items referred to in
subdivisions (2) and (3) of this paragraph (b) in cases in which
such items are being amortized or are provided for, or are being
provided for, by reserves.
(c) As used herein "Total Capitalization"
shall mean the aggregate of:
(1) The principal amount of all
outstanding indebtedness of the Corporation maturing more than
twelve months after the date of issue thereof; and
(2) The par value or stated capital
represented by, and any premiums carried on the books of the
Corporation in respect of, the outstanding shares of all classes
of the capital stock of the Corporation, earned surplus, and
capital or paid-in surplus, less any amounts required to be
deducted pursuant to subdivisions (2) and (3) of paragraph (b)
above in the determination of Common Stock Equity.
(3) The term "Net Income of the
Corporation Available for Dividends on the Common Stock" for any
twelve-month period shall mean the Net Earnings of the
Corporation Available for the Payment of Interest Charges for
such period, less interest charges, amortization charges, other
proper income deductions, and dividends, paid or accrued, on all
outstanding shares of stock of the Corporation having a
preference as to dividends over the Common Stock for such period,
all as shall be determined in accordance with such system of
accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with sound accounting practice.
C. Other Provisions.
1. No holder of any of the shares of any class or
series of stock or securities convertible into such shares of any
class or series of stock, or of options, warrants or other rights
to purchase or acquire shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive
right to purchase, acquire or subscribe for any unissued stock of
any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of any
class or series, or carrying any right to purchase or acquire
stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase or acquire stock, may be issued
and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations, and upon
such terms as may be deemed advisable by the Board of Directors
in the exercise of its sole discretion.
2. The Corporation reserves the right to increase
or decrease its authorized capital stock, or any class of series
thereof, or to reclassify the same and to amend, alter, change or
repeal any provision contained in the Articles of Incorporation,
or in any amendment thereto, in the manner now or hereafter
prescribed by law, but subject to such conditions and limitations
as are hereinbefore prescribed, and all rights conferred upon
shareholders in the Articles of Incorporation of this
Corporation, or any amendment thereto, are granted subject to
this reservation.
3. Unless any statute of the State of Indiana shall
expressly provide to the contrary and subject to the limitations
hereinbefore set forth in this ARTICLE V, the Corporation may
acquire, hold and dispose of any shares of its stock of any class
heretofore issued and outstanding.
ARTICLE VI
Directors
The number of directors of the Corporation shall be
determined in accordance with the By-laws of the Corporation. A
director shall hold office until the annual meeting for the year
in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death,
resignation, retirement, age and service limitations as may be
set forth in the By-laws, disqualification or removal from
office. Any vacancy on the Board of Directors that results from
other than an increase in the number of directors may be filled
by a majority of the Board of Directors then in office even if
less than a quorum, or by a sole remaining director. The term of
any director elected by the Board of Directors to fill a vacancy
not resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection,
or appointment as a member of the Board of Directors if such
person shall have attained the age of seventy years in the
calendar year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs,
any and all of the directors may only be removed for cause.
ARTICLE VII
Incorporator
The name and post office address of the Incorporator of
the Corporation is Cheryl M. Foley, 1000 East Main Street,
Plainfield, Indiana 46168.
ARTICLE VIII
Indemnification
Each director and each officer of the Corporation shall
be indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys' fees), judgments,
penalties, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with the defense
of any proceeding in which he or she was or is a party or is
threatened to be made a party by reason of being or having been a
director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which
such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, By-laws, agreement, vote of shareholders or otherwise.
If the Act of the State of Indiana is amended after approval by
the shareholders of this ARTICLE VIII to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Act of the State of Indiana, as so amended. Any repeal or
modification of this ARTICLE VIII by the shareholders of the
Corporation shall not adversely affect any right or protection of
a director of the Corporation existing at the time of such repeal
or modification.
Incorporator
/s/ Cheryl M. Foley____________________
Cheryl M. Foley
DATED: Oct. 8, 1992
This instrument prepared by:
Frank T. Lewis
Attorney at Law
1000 East Main Street
Plainfield, Indiana 46168
BY-LAWS
OF
WHOLESALE POWER SERVICES, INC.
BY-LAWS
OF
WHOLESALE POWER SERVICES, INC.
ARTICLE I.
OFFICES.
SECTION 1. The principal office of the PSI Resource
Development, Inc. shall be at 1000 East Main Street, Plainfield,
Indiana 46168; and the corporation may have such other offices at
such other places as the board of directors may from time to time
designate, or as the business of the corporation may require.
ARTICLE II.
SHAREHOLDERS' MEETINGS.
SECTION 1. Any meeting of the shareholders may be held at
the office of the corporation in the city of Indianapolis,
Indiana, or at such other place within or outside the state of
Indiana through the use of any means of communication by which
all shareholders participating may simultaneously hear each other
at the meeting. The place and manner of the meeting shall be
specified in the notice of such meeting, or if such meeting is
held upon waiver of notice, specified in the waiver of notice
signed by all of the shareholders.
SECTION 2. All annual meetings of shareholders shall be
held at 10:00 A.M. on the third Wednesday of April of each year
if not a legal holiday, and if a legal holiday, then on the next
succeeding day not a legal holiday, for the purpose of electing
directors and for the transaction of such other business as may
legally come before the meeting. If for any reason the annual
meeting of the shareholders shall not be held at the time and
place herein provided, the same may be held at any time
thereafter, or the business to be transacted at such annual
meeting may be transacted at any special meeting called for that
purpose.
SECTION 3. Written or printed notice of the annual meeting,
stating the place, manner, day and hour of the meeting, shall be
delivered or mailed by the secretary or an assistant secretary to
each shareholder of record entitled to vote at such meeting, at
such address as appears on the records of the corporation, at
least ten days, but not more than sixty days, before the date of
the meeting.
SECTION 4. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute,
shall be held if called by the chairman, the president or a vice
president, by the board of directors, or by the shareholders
holding of record such number of the outstanding shares of the
corporation as represents not less than one-fourth of the
aggregate number of votes that would be voted at such meeting if
there were voted thereat all the outstanding shares entitled to
vote on the business proposed to be transacted thereat. All
requests for special meetings of shareholders shall state the
time, manner, place and purpose thereof. Only business within
the purpose stated in such request shall be conducted at such
meeting.
SECTION 5. Written or printed notice of all special
meetings of shareholders stating (i) the place, manner, day and
hour of the meeting, and (ii) the purpose or purposes for which
such meeting is called, shall be delivered or mailed by the
secretary, assistant secretary or by the officers or persons
calling the meeting to each shareholder of record entitled to
vote at such meeting at such address as appears on the records of
the corporation, at least ten days before the date of such
meeting.
SECTION 6. Notice of any meeting of shareholders may be
waived in writing by any shareholder if the waiver sets forth in
reasonable detail the purpose or purposes for which the meeting
is called and the time and place thereof. Attendance at any
meeting in person or by proxy shall constitute a waiver of notice
of such meeting.
SECTION 7. Any meeting of the shareholders, the holders of
record (present in person or represented by proxy) of such number
of the outstanding shares of the corporation as represents a
majority of the aggregate number of votes that would be voted at
such meeting if there were voted thereat all the outstanding
shares entitled to vote at such meeting, shall be requisite to
constitute a quorum for the election of directors or for the
transaction of other business, unless otherwise provided by law.
If, however, the holders of such majority shall not be present or
represented at any meeting of the shareholders of the
corporation, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until the holders of such majority
shall be present or represented. At such adjourned meeting at
which the holders of such majority shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. Every shareholder shall have the right at every
shareholders' meeting to one vote for each share of stock
standing in his name on the books of the corporation, except as
otherwise provided by law or by the articles of incorporation and
except that no shares shall be voted at any meeting upon which
any installment is due and unpaid, or which belongs to the
corporation, or which shall have been transferred on the books of
the corporation within such number of days, not exceeding
seventy, next preceding the date of such meeting as the board of
directors shall determine, or, in the absence of such
determination, within ten days next preceding the date of such
meeting. At any adjourned meeting of shareholders, the board of
directors shall fix a record date for shareholders entitled to
vote at such adjourned meeting which must be a new date if the
meeting is adjourned for more than one hundred twenty days.
A plurality vote shall be sufficient to elect any director.
SECTION 9. The secretary shall make, or cause the agent
having charge of the stock transfer books of the corporation to
make, at least five days before each election of directors, a
complete list of the shareholders entitled by the articles of
incorporation to vote at such election, arranged in alphabetical
order, with the address and number of shares so entitled to vote
held by each, which list shall be on file at the principal office
of the corporation and subject to inspection by any shareholder
within the usual business hours during said five days. Such list
shall be produced and kept open at the time and place of election
and subject to the inspection of any shareholder or shareholder's
agent or attorney authorized in writing during the holding of
such election. The original stock register or transfer book, or
the duplicate thereof kept in the state of Indiana, shall be the
only evidence as to who are the shareholders entitled to examine
such list or the stock ledger or transfer book or to vote at any
meeting of the shareholders.
SECTION 10. A shareholder may vote either in person or by
proxy executed in writing by the shareholder or a duly authorized
agent or attorney in fact. No proxy shall be valid after eleven
months from the date of its execution, unless a longer time is
expressly provided therein.
SECTION 11. The secretary, who may call on any officer or
officers of the corporation for assistance, shall make all
necessary and appropriate arrangements for the meetings of the
shareholders, receive all proxies, and ascertain and report by
certificate to each meeting of the shareholders the number of
shares present in person or by proxy and entitled to vote at such
meeting. In the absence of the secretary, an assistant secretary
shall perform said duties. The certificate report of the
secretary or an assistant secretary as to the regularity of such
proxies and as to the number of shares present in person or by
proxy and entitled to vote as such meeting shall be received as
prima facie evidence of the number of shares, which are present
in person and by proxy and entitled to vote, for the purpose of
establishing the presence of a quorum at such meeting, for the
purpose of organizing such meeting, and for all other purposes.
SECTION 12. The chairman, when present, shall chair at the
meetings of the shareholders. In the event of the absence or
disability of the chairman, the president, if present, shall so
chair. In the event no such officers are present, the meeting
shall choose a presiding officer.
SECTION 13. At each meeting of the shareholders, (i) the
proxies shall be received and taken in charge by three
inspectors, (ii) where voting is to be by ballot on any question,
the polls shall be opened and closed and the ballots shall be
taken in charge by such inspectors, and (iii) all questions
touching the qualification of voters, the validity of proxies and
the acceptance or rejection of votes shall be decided by such
three inspectors or a majority thereof. Such inspectors may be
appointed by the board of directors before such meeting, or, if
no such appointment shall have been made, then by the presiding
officer at such meeting. In the event for any reason any of the
inspectors previously appointed shall fail to attend such
meeting, or being present will not or cannot act in such
capacity, then an inspector or inspectors in place of such
inspector or inspectors failing to attend or not acting shall be
appointed by the presiding officer.
SECTION 14. The order of business at each annual meeting of
the shareholders, and, as far as applicable, at each special
meeting of the shareholders, shall be as follows:
(1) call to order by the presiding officer,
(2) presentation of proofs of due call and notice of the
meeting; provided, however, that the certificate of the secretary
or assistant secretary that such notices were mailed, or the
affidavit of such other person or persons who mailed the notices
of such meeting, shall be conclusive evidence of such mailing,
(3) submission of an alphabetical list of shareholders
entitled to vote,
(4) certificate and report of the secretary or assistant
secretary as to the number of shares present in person or by
proxy and entitled to vote,
(5) ruling by presiding officer as to the presence of a
quorum and the due organization of the meeting for the
transaction of business,
(6) announcement by the presiding officer of the persons to
act as inspectors at such meeting,
(7) reading or presentation of the minutes of previous
meeting of shareholders,
(8) presentation of annual report to shareholders,
(9) election of directors and announcement in respect of
annual meeting of directors,
(10) unfinished business,
(11) new business, and
(12) adjournment.
SECTION 15. The chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or
desirable for the proper conduct of meetings of the shareholders,
including, without limitation, the establishment of procedures
for the maintenance of order, safety, limitations on the time
allotted to questions or comments on the affairs of the
corporation, restrictions on entry to such meeting of the
shareholders after the time prescribed for the commencement
thereof, and the opening and closing of the voting polls.
SECTION 16. The annual meeting of shareholders shall be
held at such time as is provided in Section 2 of this Article for
the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in
accordance with these by-laws.
Notwithstanding anything in the by-laws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II;
provided, however, that nothing in this Article II shall be
deemed to preclude discussion by any shareholder of any business
properly brought before the annual meeting.
The chairman of the annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that
business was not properly brought before the annual meeting in
accordance with the provisions of this Article II, and if he
should so determine, he shall so declare to the annual meeting,
and any such business not properly brought before the annual
meeting shall not be transacted.
SECTION 17. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the board of
the corporation at the annual meeting may be made at the annual
meeting of shareholders by or at the direction of the board of
directors, by any nominating committee or person appointed by the
board, or by any shareholder of the corporation, entitled to vote
for the election of directors at the annual meeting, who complies
with the notice procedures set forth in this Article II.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the annual meeting that a nomination was
not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the annual meeting,
and the defective nomination shall be disregarded.
SECTION 18. An annual meeting of shareholders may be
adjourned or postponed to a different time or place, and notice
of the new date, time or place need not be given if such
adjournment or postponement is announced at the annual meeting
before adjournment.
ARTICLE III.
BOARD OF DIRECTORS.
SECTION 1. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of this
corporation managed under the direction of a board of not less
than two (2) nor more than nine (9) directors. A director shall
hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation,
retirement, age and service limitations as may be set forth in
these by-laws, disqualification or removal from office. Any
vacancy on the board of directors that results from other than an
increase in the number of directors may be filled by a majority
of the board of directors then in office even if less than a
quorum, or by a sole remaining director. The term of any
director elected by the board of directors to fill a vacancy not
resulting from an increase in the number of directors shall
expire at the next shareholders' meeting at which directors are
elected, and the remainder of such term, if any, shall be filled
by a director elected at such meeting.
No person shall be eligible for election, reelection, or
appointment as a member of the board of directors if such person
shall have attained the age of seventy (70) years in the calendar
year preceding the date of such election, reelection or
appointment.
Subject to the provisions of the preceding paragraphs, any
and all of the directors may only be removed for cause.
The directors shall receive such reasonable compensation as
shall from time to time be provided for by resolution of the
board of directors or a committee thereof.
SECTION 2. In addition to the powers and authority by these
by-laws expressly conferred upon it, the board of directors may
do all such lawful acts and things as are not by the laws of the
state of Indiana, by the articles of incorporation of the
corporation, or by these by-laws directed or required to be
exercised or done by the shareholders of the corporation.
SECTION 3. A meeting of the newly elected directors, to be
known as the annual meeting of the board of directors, shall be
held at the principal office of the corporation as soon as
conveniently possible after the annual meeting of the
shareholders, or at such other place, within or without the state
of Indiana, and at such other time as shall be fixed by the
shareholders at their annual meeting, or as shall be fixed by the
consent in writing of all of such newly elected directors, for
the election of officers and for the transaction of such other
business as may properly come before the meeting. No notice of
such annual meeting shall be necessary or required in order
legally to constitute the meeting if a majority of the newly
elected directors shall be present. If a majority shall not be
present at such meeting, those present shall adjourn the meeting
to a specified time and place, and the secretary or an assistant
secretary shall at once notify each of the newly elected
directors of the time and place of holding such adjourned annual
meeting.
SECTION 4. Regular meetings of the board of directors or
any committee thereof may be held at stated times, or from time
to time, and at such place, either within or without the state of
Indiana, as the board of directors or any committee may
determine, without call and without notice. Any or all members
of the board of directors or a committee thereof, may participate
in any meeting of the board or committee by any means of a
communication by which all persons participating in the meeting
can simultaneously communicate with each other, and participation
in this manner constitutes presence in person at the meeting.
SECTION 5. Special meetings of the board of directors may
be called at any time, or from time to time, by the chairman, the
president or a vice president by causing the secretary or an
assistant secretary to give to each director, either personally
or by telephone, mail or telegraph. Special meetings of the
board of directors shall be called by the chairman, the president
or a vice president in like manner and on like notice at the
written request of at least two directors. Special meetings of
the board of directors may be held at the principal office of the
corporation or at such other place, within or without the state
of Indiana, as shall be specified in the notice of the meeting,
or, if held upon waiver of notice, as shall be specified in such
waiver.
SECTION 6. Any meeting of the board of directors or any
committee thereof, wheresoever held, at which all of the members
are present, shall be as valid as if held pursuant to proper
notice, and in case a meeting shall be held without notice when
all are not present but the absent directors shall have signed a
waiver of notice of such meeting, whether before or after the
time stated in said waiver, or shall thereafter sign the minutes
of the meeting, the same shall be as valid and binding as though
called upon due notice.
SECTION 7. The board of directors may take any action
pursuant to these by-laws without a meeting if the action is
taken by all members of the board. The action shall be evidenced
by one or more written consents describing the action taken,
signed by each director and included in the minutes or filed with
the corporate records reflecting the action taken. Action taken
without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different prior or
subsequent effective date.
SECTION 8. At all meetings of the board of directors, a
majority of the members of the board of directors shall be
necessary to constitute a quorum for the transaction of any
business except the filling of vacancies, but a less number may
adjourn the meeting from time to time until a quorum is present.
The act of a majority of the board of directors present at a
meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is
required by law or by the articles of incorporation or by the by-
laws.
SECTION 9. The board of directors may, by resolution
adopted by a majority of the members of the board of directors,
designate two or more of their number to constitute an executive
committee, which committee, to the extent provided in said
resolution, shall have and exercise all of the authority of the
board of directors in the management of the corporation.
ARTICLE IV.
OFFICERS.
SECTION 1. The officers of the corporation shall be a
chairman, a president, one or more vice presidents, a general
manager, a secretary, one or more assistant secretaries, a
treasurer, one or more assistant treasurers, and a comptroller.
If deemed advisable by the board of directors, any two or more
offices may be held by the same person, except that the duties of
the chairman or the president shall not be performed by the same
person who performs the duties of secretary.
SECTION 2. The officers of the corporation hereinabove
provided for shall be elected by the board of directors at its
annual meeting and shall hold office for one year and/or until
their respective successors shall have been duly elected and
shall have qualified.
SECTION 3. The board of directors may, from time to time,
elect or appoint an auditor and such other officers and agents as
it shall deem necessary, who shall hold their respective offices
for such terms and shall exercise such powers and perform such
duties as may be prescribed from time to time by the by-laws, or
as in absence of provision in the by-laws in respect thereto may
be prescribed from time to time by the board of directors.
SECTION 4. Any vacancy among the officers or agents of the
corporation, duly elected or appointed by the board of directors
shall be filled for the unexpired term by the board of directors.
Any officer or agent elected or appointed by the board of
directors, may be removed at any time, with or without cause, by
the affirmative vote of a majority of the whole board of
directors.
SECTION 5. In the case of the absence, disability, death,
resignation or removal from office of any officer of the
corporation, or for any other reason that the board of directors
shall deem sufficient, the board of directors may delegate, for
the time being, the powers and/or duties, or any of them, of such
officer to any other officer or to any director.
SECTION 6. The chairman shall be the chief executive
officer of the corporation and shall have general authority over
all the affairs of the corporation and over all other officers,
agents and employees of the corporation. The chairman shall,
when present, preside at all meetings of the shareholders and, in
the absence of the chairman, the president shall preside at all
meetings of the board of directors. When the board of directors
is not in session, the chairman shall have authority to suspend
the authority of any other officer or officers of the
corporation; subject, however, to the pleasure of the board of
directors at its next meeting. In the case of the absence,
disability, death, resignation or removal from office of the
chairman, the powers and duties of the chairman shall, for the
time being, devolve upon and be exercised by the president,
unless otherwise ordered by the board of directors.
SECTION 7. The president shall, subject to the control of
the board of directors and the chairman, have such powers and
perform such duties as usually devolve upon the president of a
corporation and such other duties as may be prescribed for the
president by the board of directors or the chairman. The
president shall report to the chairman. In case of the absence,
disability, death, resignation or removal from office of the
president, the powers and duties of the president shall, for the
time being, devolve upon and be exercised by a vice president,
unless otherwise ordered by the board of directors or the
chairman.
SECTION 8. The general manager shall, subject to the
control of the board of directors, the chairman and the president
have general supervision over the management and direction of the
affairs of the corporation, and supervision of all departments
and of all officers of the corporation. The general manager
shall, subject to the other provisions of these by-laws, have
such other powers and perform such other duties as usually
devolve upon the general manager of a corporation, and such
further duties as may be prescribed for the general manager by
the board of directors, the chairman or the president. The
general manager shall report to the chairman. In case of the
absence, disability, death, resignation or removal from office of
the general manager, the powers and duties of the general manager
shall, for the time being, devolve upon and be exercised by the
president, unless otherwise ordered by the board of directors or
the chairman.
SECTION 9. The secretary shall have the custody and care of
the records, minutes and stock books of the corporation and shall
be responsible for authentication of such records. The secretary
shall attend the meetings of the board of directors and of the
shareholders and duly record, prepare and keep the minutes of
their proceedings in a book or books to be kept for that purpose.
The secretary shall give or cause to be given notice of all
meetings of the shareholders and the board of directors when such
notice shall be required. The secretary shall file and take
charge of all papers and documents belonging to the corporation
and shall have such other powers and duties as are incident to
the office of secretary of a corporation, subject at all times to
the direction and control of the board of directors, the
chairman, the president and a vice president. In case of the
absence, disability, death, resignation or removal from office of
the secretary, the powers and duties of the secretary shall, for
the time being, devolve upon and be exercised by an assistant
secretary, unless otherwise ordered by the board of directors,
the chairman, the president or a vice president.
SECTION 10. Each of the assistant secretaries shall assist
in the secretarial duties and shall have such other powers and
duties as may be prescribed for such assistant secretary by the
board of directors, or be delegated to such assistant secretary
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the secretary, those powers and duties shall, for the
time being, devolve upon such one of the assistant secretaries as
the board of directors, the chairman, the president, a vice
president or the secretary may designate, or, if there be but one
assistant secretary, then upon such assistant secretary; and such
assistant secretary shall thereupon, during such period, exercise
and perform all of the powers and duties of the secretary, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president.
SECTION 11. The treasurer shall have charge of, and be
responsible for, the collection, receipt, custody and
disbursement of the funds of the corporation, and shall have the
custody also of all securities belonging to the corporation. The
treasurer shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. The
treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper receipts or
making proper vouchers for such disbursements and shall preserve
the same at all times during the treasurer's term of office.
When necessary or proper, the treasurer shall endorse on behalf
of the corporation all checks, notes or other obligations payable
to the corporation or coming into the treasurer's possession for
or on behalf of the corporation and shall deposit the funds
arising therefrom together with all other funds and valuable
effects of the corporation coming into the treasurer's possession
in the name and to the credit of the corporation in such
depositories as the board of directors from time to time, by
resolution, shall direct. The treasurer shall have such other
powers and duties as are incident to the office of treasurer of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president.
The treasurer shall render to the chairman, president, a
vice president and the board of directors, at the regular
meetings of the board of directors, or whenever the same shall be
required, an account of all the treasurer's transactions as
treasurer and of the financial condition of the corporation. The
treasurer shall give the corporation a bond, if required by the
board of directors, in such an amount and with such surety or
sureties as may be ordered by the board, for the faithful
performance of the duties of the treasurer's office and for the
restoration to the corporation, in case of the treasurer's death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
the treasurer's possession or under the treasurer's control
belonging to the corporation.
In case of the absence, disability, death, resignation or
removal from office of the treasurer, the powers and duties of
the treasurer shall, for the time being, devolve upon and be
exercised by an assistant treasurer, unless otherwise ordered by
the board of directors, the chairman, the president or a vice
president.
SECTION 12. Each of the assistant treasurers shall assist
in the duties of the treasurer, and shall have such other powers
and duties as may be prescribed for the assistant treasurer by
the board of directors or be delegated to the assistant treasurer
by the chairman, the president or a vice president. In case of
the absence, disability, death, resignation or removal from
office of the treasurer, those powers and duties shall, for the
time being, devolve upon such one of the assistant treasurers as
the board of directors, the chairman, the president, a vice
president or the treasurer may designate, or, if there be but one
assistant treasurer, then upon such assistant treasurer; and such
assistant treasurer shall thereupon, during such period, exercise
and perform all of the powers and duties of the treasurer, except
as may be otherwise provided by the board of directors, the
chairman, the president or a vice president. Each or any
assistant treasurer shall likewise give the corporation a bond,
if required by the board of directors, in such amount and with
such surety or sureties as may be ordered by the board of
directors.
SECTION 13. The comptroller shall have control over all
accounts and records of the corporation pertaining to moneys,
properties, materials and supplies. The comptroller shall have
executive direction of the bookkeeping and accounting departments
and shall have general supervision over the records in all other
departments pertaining to moneys, properties, materials and
supplies. The comptroller shall have such other powers and
duties as are incident to the office of comptroller of a
corporation, subject at all times to the direction and control of
the board of directors, the chairman, the president and a vice
president. In case of the absence, disability, death,
resignation or removal from office of the comptroller, the powers
and duties of the comptroller shall be delegated by the board of
directors, the chairman, the president or a vice president.
SECTION 14. The auditor (if an auditor be elected or
appointed by the board of directors) shall have charge of the
investigation of all accounts and records of the corporation
pertaining to moneys, properties and supplies, for the purpose of
establishing their correctness. The auditor shall examine the
accounts of all officers and employees from time to time, as
often as practicable and shall see that proper returns are made
of all receipts from all sources and that correct vouchers are
provided for disbursements for any purpose. The auditor shall
have such other powers and duties as are commonly incident to the
office of auditor of a corporation, subject at all times to the
direction and control of the board of directors, the chairman,
the president and a vice president. In case of the absence,
disability, death, resignation or removal from office of the
auditor, the powers and duties of the auditor shall be delegated
by the board of directors, the chairman, the president or a vice
president.
ARTICLE V.
CERTIFICATES FOR SHARES.
SECTION 1. Each certificate for shares of stock of the
corporation shall be in such form, consistent with law, as shall
be approved by the board of directors, shall be numbered
consecutively as issued, shall state the name of the registered
holder, the number of shares represented thereby, and such other
matters and things as are required by law or by the articles of
incorporation to be stated in such certificate. Each such
certificate shall be signed by the chairman, the president or a
vice president and the secretary or an assistant secretary of the
corporation. In any case where such a certificate is also signed
by a transfer agent and a registrar or either of them, the
respective signatures of the chairman, president or a vice
president and of the secretary or an assistant secretary thereon
may be facsimiles, engraved or printed.
SECTION 2. Shares of stock of the corporation shall be
entered in the books of the corporation as they are issued, and
shall be transferable on the books of the corporation by the
holder thereof in person, or by his, her or its attorney duly
authorized thereto in writing, upon the surrender of the
outstanding certificate therefor properly endorsed.
SECTION 3. The corporation and its officers shall be
entitled to treat the holder of record of any share or shares of
stock of the corporation 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 or shares on the part of
any other person or persons, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws
of Indiana, or except as in the articles of incorporation or in
these by-laws provided to the contrary.
SECTION 4. Shares of the capital stock of the corporation
may be issued and disposed of by the corporation from time to
time for such consideration as may be fixed from time to time by
resolution of the board of directors.
SECTION 5. The purchase price of all stock subscribed or
purchased shall be paid as from time to time determined by
resolution of the board of directors, either wholly or partly in
money, labor or property. Said payments shall be made within
such time and in such installments or upon such terms as the
board of directors may from time to time determine and direct.
ARTICLE VI.
CORPORATE BOOKS.
SECTION 1. Except as hereinafter or by the articles of
incorporation or by law otherwise provided, the books and records
of the corporation may be kept at such place or places, within or
without the state of Indiana, as the board of directors may from
time to time by resolution determine.
SECTION 2. The original or duplicate stock register or
transfer book, or, in case a stock registrar or transfer agent
shall be employed by the corporation either within or without the
state of Indiana, a complete and accurate shareholders' list,
alphabetically arranged, giving the names and addresses of all
shareholders, the number and classes of shares held by each and
the time each became the record owner of his shares, shall be
kept at the principal office of the corporation in the state of
Indiana.
SECTION 3. The stock transfer books of the corporation may
from time to time be closed by order of the board of directors
for any lawful purpose, and for such periods consistent with law,
but not exceeding seventy days at any one time, as the board of
directors may deem advisable. In lieu of closing the stock
transfer books as aforesaid, the board of directors may, in its
discretion, fix in advance a date not exceeding seventy days (or
such lesser number of days as may in any case be the maximum
number allowed under any applicable statute) next preceding the
date of any meeting of shareholders or the date for the payment
of any dividend or the date for the allotment of rights or the
date when any change or conversion or exchange of capital stock
shall go into effect, as the record date for the determination of
the shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or to any such
allotment of rights or to exercise the rights in respect of any
such change, conversion or exchange of capital stock; and, in
such case, only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such payment of dividend or to
receive such allotment of rights or to exercise such rights as
the case may be, notwithstanding any transfer of stock on the
books of the corporation after such record date fixed as
aforesaid.
SECTION 4. All books and records of the corporation shall
be kept and maintained in such manner and for such periods as
required by statute.
ARTICLE VII.
CHECKS, DRAFTS AND WRITTEN INSTRUMENTS -
STOCK OWNED IN OTHER CORPORATIONS.
SECTION 1. Except as provided in the immediately succeeding
sentence of this Section 1, all checks, drafts, notes, demands or
orders for the payment of money of the corporation shall be
signed by one or more of such officers or other employees of this
corporation and the signature of any such officer or other
employee may be a facsimile signature, all as the board of
directors shall at any time and from time to time by resolution
or resolutions specify; provided, however, that in the cases of
drafts not exceeding $3,000 for any one such draft, used by this
corporation, the board of directors may empower the chairman, the
president and a vice president, or any of them, to designate in
writing the one or more officers or other employees authorized to
sign such drafts. To the extent that the board of directors may
by resolution or resolutions authorize from time to time, the
signature of this corporation on checks of this corporation which
are used solely for the purpose of transferring funds from the
account of this corporation in any bank or trust company to the
account of this corporation in any other bank or trust company
may be only the printed name of this corporation.
SECTION 2. Except as otherwise provided by these by-laws,
(i) all deeds and mortgages made by this corporation shall be
executed in its name by the president or a vice president and
shall be attested by the secretary or an assistant secretary, and
(ii) all other written agreements to which this corporation shall
be a party shall be executed in its name by the chairman, the
president or a vice president, and may be (but need not be)
attested by the secretary or an assistant secretary.
Notwithstanding the immediately preceding sentence of this
Section 2, written agreements of this corporation (other than
deeds and mortgages made by this corporation), which pertain to
the routine operations of this corporation and are regularly
being made in the ordinary course of carrying on such operations,
may be executed for and on behalf of this corporation by any
officer or officers of this corporation, or by any other agent or
agents of this corporation, to the extent that such person or
persons may, from time to time, be so authorized to act by either
resolution of the board of directors or by written authorization
of an officer of this corporation who has been authorized by
resolution of the board of directors to execute such written
authorization.
SECTION 3. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any corporation and owned by this corporation
(including reacquired shares of stock of this corporation) may,
for sale or transfer, be endorsed in the name of this corporation
by the chairman, the president or a vice president of this
corporation, and said endorsement shall be duly attested by the
secretary or an assistant secretary of this corporation.
SECTION 4. Subject always to the further orders and
directions of the board of directors, any share or shares of
stock issued by any other corporation and owned or controlled by
this corporation may be voted at any shareholders' meeting of
such other corporation by the chairman of this corporation, if he
be present, or in his absence by the president of this
corporation if he be present, or in the absence of both such
chairman and such president by any vice president of this
corporation who may be present. Whenever, in the judgment of the
chairman, the president or a vice president of this corporation,
it is desirable for this corporation to execute a proxy or give a
shareholder's consent in respect of any share or shares of stock
issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this
corporation by the chairman, the president or a vice president of
this corporation, and shall be attested by the secretary or an
assistant secretary of this corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of
this corporation shall have full right, power and authority to
vote the share or shares of stock issued by such other
corporation and owned by this corporation the same as such share
or shares might be voted by this corporation.
ARTICLE VIII.
DIVIDENDS.
SECTION 1. Dividends upon the capital stock of the
corporation, when earned, may be declared by the board of
directors at any annual, regular or special meeting. Such
dividends may be paid in cash, in property or in shares of the
capital stock of the corporation, in the case of shares with par
value at par, and in the case of shares without par value at such
price as may be fixed by the board of directors.
SECTION 2. Before payment of any dividend or before making
any distribution of profits, there may be set aside out of the
surplus or net profits of the corporation such sum or sums as the
board of directors form time to time, in their absolute
discretion, may deem proper, as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for working
capital, or for such other purpose as the board of directors
shall think conducive to the interests of the corporation.
ARTICLE IX.
FISCAL YEAR.
SECTION 1. The fiscal year of the corporation shall cover a
twelve-month period commencing on the first day of such month as
the board of directors shall, by resolution, provide.
ARTICLE X.
AMENDMENTS.
SECTION 1. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted at any annual,
regular or special meeting of the board of directors by the
affirmative vote of a majority of the members of the board of
directors.
LAWRENCEBURG GAS COMPANY
TO
THE FIRST NATIONAL BANK OF CINCINNATI,
AS TRUSTEE
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 1986
Supplemental to Indenture of Mortgage and Deed of Trust from
Lawrenceburg Gas Company to The First National Bank of
Cincinnati, as Trustee, dated
March 1, 1955
First Mortgage Bonds, 9-3/4% Series Due 2001
This is, among other things, a mortgage of
chattels.
SEVENTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1986,
between LAWRENCEBURG GAS COMPANY, a corporation organized and
existing under the laws of the State of Indiana (the Company),
having its principal office at No. 230 West High Street,
Lawrenceburg, Indiana, and THE FIRST NATIONAL BANK OF CINCINNATI,
a national banking association organized and existing under the
laws of the United States of America, and authorized to accept
and execute trusts, having its principal office at Fifth and
Walnut Streets, Cincinnati, Ohio, as Trustee (the Trustee).
WHEREAS, the Company has heretofore executed and delivered
to the Trustee its Indenture of Mortgage and Deed of Trust, dated
March 1, 1955 (the Indenture) to secure the payment of the
principal of and the interest on bonds of all series at any time
issued and outstanding thereunder, to declare the terms upon
which bonds are to be issued thereunder (the Bonds) and to
provide that the Company and the Trustee may from time to time
enter into indentures supplemental to the Indenture for the
purpose of creating new series of Bonds;
WHEREAS, the Company and the Trustee have amended and
supplemented the Indenture by means of six supplemental
indentures (the indenture as amended) under the Fourth and Fifth
of which there are Bonds now outstanding;
WHEREAS, the Company has duly determined to create a new
series of Bonds to be known as "First Mortgage Bonds, 9-3/4%
Series Due 2001", which shall be limited to an aggregate
principal amount outstanding of $1,200,000, and to add to the
agreements contained in the Indenture as amended the agreements
hereinafter set forth; and
WHEREAS, the Company, pursuant to resolutions duly adopted
by its Board of Directors at a duly called and held meeting, has
approved the form and provisions of this Seventh Supplemental
Indenture and authorized its execution, for the purpose of
creating under the Indenture as amended and this Seventh
Supplemental Indenture a new series of First Mortgage Bonds, 9-
3/4% Series Due 2001 (2001 Series Bonds), which are to be
substantially in the following form, with appropriate omissions,
insertions and variations as in the Indenture as amended and in
this Seventh Supplemental Indenture provided or permitted:
[Form of 2001 Series Bonds]
Number ________________ $ _______________
LAWRENCEBURG GAS COMPANY
First Mortgage Bond, 9-3/4% Series Due 2001
Due October 1, 2001
For value received, LAWRENCEURG GAS COMPANY, a corporation
organized and existing under the laws of the State of Indiana
(the Company, which term shall include any successor corporation
as defined in the Indenture hereinafter referred to), hereby
promises to pay to
__________ or registered assigns, on October 1, 2001, the sum of
__________ Dollars ($________) in coin or currency of the United
States of America, which at the time of payment is legal tender
for the payment of public and private debts, and to pay to the
registered holder hereof interest thereon from the date hereof,
at the rate of nine and three-quarters percent (9-3/4%) per
annum, in like coin or currency, payable semi-annually on the
first day of April and the first day of October in each year
until the principal hereof shall have become due and payable, and
thereafter if default be made in the payment of such principal,
at the rate of nine and three-quarters percent (9-3/4%) per annum
until the principal hereof shall be paid. Payments of both
principal and interest are to be made at the principal office of
the Trustee in the City of Cincinnati, Ohio.
This Bond is one of an authorized issue of Bonds of the
Company, known as its First Mortgage Bonds, not limited in
aggregate principal amount, except as provided in the Indenture
hereinafter mentioned, all issued and to be issued in one or more
series under and equally and ratably secured (except as any
sinking, amortization, improvement, renewal or other analogous
fund, established in accordance with the provisions of the
Indenture hereinafter mentioned, may afford additional security
for the Bonds of any particular series) by an indenture of
mortgage and deed of trust (herein, together with all
supplemental indentures thereto, called the Indenture), executed
by the Company to The First National Bank of Cincinnati (the
Trustee) as Trustee, dated March 1, 1955, to which Indenture
reference is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security, the
terms and conditions upon which the Bonds are and are to be
issued and secured and the rights of the holders thereof and of
the Trustee in respect of such security. As provided in the
Indenture, such Bonds may be issued in series, for various
principal sums, may bear different dates and mature at different
times, may bear interest at different rates and may otherwise
vary as in the Indenture provided or permitted. This Bond is one
of the Bonds described in the Indenture and designated therein as
"First Mortgage Bonds, 9-3/4% Series Due 2001" (the 2001 Series
Bonds).
As provided in the Indenture, the 2001 Series Bonds are
subject to redemption prior to maturity at the option of the
Company in a multiple of One Thousand Dollars at any time on or
after October 1, 1991, in whole or in part, together with
interest accrued to the date fixed for redemption, plus a premium
equal to the applicable percentage of such amount determined as
follows:
If redeemed in the Percentage
twelve-month period of Principal
ending September 30 Amount
1992 9.00%
1993 8.00%
1994 7.00%
1995 6.00%
1996 5.00%
1997 4.00%
1998 3.00%
1999 2.00%
2000 1.00%
2001 None
As provided in the Indenture, if any of the Bonds are to be
redeemed notice of redemption shall be mailed by registered mail,
postage prepaid, not less than thirty days nor more than sixty
days prior to the redemption date, to each registered holder of
any Bond to be so redeemed to the last address of such holder
appearing on the registry books for the Bonds.
If provision is made for the redemption and payment of any
Bond such Bond (or such portion thereof) shall cease to bear
interest from and after the date fixed for redemption.
To the extent permitted by and as provided in the Indenture,
the rights and obligations of the Company and of the holders of
the Bonds may be changed and modified with the consent of the
Company and upon the written consent of the holders of at least
sixty-six and two-thirds per cent in principal amount of each
series of the Bonds at the time outstanding and entitled to
consent, provided that no such change shall be made (a) which
would without the consent of the holders of all Bonds then
outstanding and affected thereby (i) reduce the principal of, or
premium on, or the rate of interest payable on, the Bonds, (ii)
postpone the maturity date fixed in the Indenture or in the
Bonds, or any installment of interest on, the Bonds, (iii) permit
the creation of any lien prior to or on a parity with the lien of
the Indenture (except as therein expressly permitted) or deprive
the holder hereof of the lien created by the Indenture on such
properties, or (iv) reduce the percentage of the principal amount
of Bonds the consent of the holders of which is required for the
authorization of any such change or modification, or (b) which
would modify, without the written consent of the Trustee, the
rights, duties or immunities of the Trustee.
In case an event of default as defined in the Indenture
shall occur and be continuing, the principal of all the Bonds
outstanding may be declared and may become due and payable in the
manner and with the effect provided in the Indenture.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture, or in any Bond thereby
secured, or because of any indebtedness thereby secured, shall be
had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company
or of any successor corporation, either directly or through the
Company or of any successor corporation under any rule of law,
statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise;
it being expressly agreed and understood that the Indenture, and
the obligations thereby secured, are solely corporate
obligations, and that no personal liability whatever shall attach
to, or be incurred by, such incorporators, stockholders, officers
or directors, as such, of the Company or of any successor
corporation, or any of them, because of the incurring of the
indebtedness thereby authorized, or under or by reason of any of
the obligations, covenants or agreements contained in the
Indenture or in any of the Bonds thereby secured, or implied
therefrom.
This Bond is a registered Bond and is transferable by the
registered holder hereof, in person or by the attorney of such
holder, duly authorized in writing, on the registry books to be
kept for such purpose at the principal office of the Trustee,
Registrar for the Bonds. Upon surrender of this Bond accompanied
by a written instrument of transfer in form approved by the
Company, duly executed by the registered holder in person or by
such attorney, and upon cancellation hereof, one or more new
registered Bonds, of authorized denominations, for the same
aggregate principal amount, will be issued to the transferee in
exchange herefor, as provided in the Indenture.
This Bond shall not be valid or become obligatory for any
purpose until the certificate endorsed hereon shall be signed by
the Trustee under the Indenture.
IN WITNESS WHEREOF, Lawrenceburg Gas Company has caused
these presents to be signed in its name by its President or a
Vice-President and its corporate seal to be affixed hereto and
attested by its Secretary or an Assistant Secretary.
LAWRENCEBURG GAS COMPANY
President
Attest:
Secretary
Trustee's Certificate of Authentication
This Bond is one of the Bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CINCINNATI
Trustee
By
Authorized
Officer
WHEREAS, all things necessary to make the 2001 Series Bonds,
when duly authenticated and issued, valid, binding and legal
obligations of the Company, and to make this Seventh Supplemental
Indenture a valid, binding and legal agreement supplemental to
the Indenture, have been done; and
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE
WITNESSETH: that in order to declare the terms and conditions
upon which the Bonds are to be issued, the Company, in
consideration of the premises and of the purchase and acceptance
of the Bonds by the holders thereof, has executed and delivered
these presents.
ARTICLE I
2001 Series Bonds
1. There shall be a new series of Bonds, known as "First
Mortgage Bonds, 9-3/4% Series Due 2001" (the 2001 Series Bonds).
The aggregate principal amount of 2001 Series Bonds which
may be authenticated and delivered and outstanding shall be
limited to $1,200,000, except as provided in Section 2.06 of the
Indenture.
The 2001 Series Bonds shall bear interest at the rate of
nine and three quarters percent per annum and shall mature
October 1, 2001.
The date of commencement of the first interest period for
the 2001 Series Bonds shall be October 1, 1986.
All 2001 Series Bonds shall bear interest from their
respective dates, such interest to be payable on the first day of
April and October in each year. Both the principal of and the
interest on the 2001 Series Bonds shall be payable at the
principal office of the Trustee, in the City of Cincinnati, Ohio,
in any coin or currency of the United States of America which at
the time of payment shall be legal tender for the payment of
public and private debts. The 2001 Series Bonds shall be subject
to redemption at the option of the Company in the manner provided
in the applicable provisions of Article IX of the Indenture, as
heretofore and hereby amended.
2. 2001 Series Bonds may forthwith upon the execution and
delivery of this Seventh Supplemental Indenture, or from time to
time thereafter, be executed by the Company and delivered to
Trustee, and shall thereupon be authenticated and delivered by
the Trustee upon the Written Order of the Company.
ARTICLE II.
Amendments to Indenture as Amended
The Indenture as amended is hereby amended in the following
respects, the section numbers specified below being the sections
of the Indenture as amended in which such amendments are made:
4.01. The first paragraph of 4.01 is hereby amended by
substituting for the words "sixty per cent. (60%)", the words
"sixty six and two-thirds per cent. (66 2/3%" in respect of the
2001 Series Bonds or any later series of Bonds.
7.05. 7.05 is hereby amended by changing the heading to
read as follows:
"7.05. Payment of Taxes; Restrictions on Other Liens" in
respect of the 2001 Series Bonds or any later series of Bonds.
7.05. The covenant concerning restrictions on leases
contained in the provisions of the second paragraph of 7.05.
shall not apply in respect of the 2001 Series Bonds or any later
series of Bonds.
7.13. In both paragraphs of 7.13. of ARTICLE II of the
Fifth Supplemental Indenture delete the words "or any later
series of Bonds"
7.14. In 7.14. of ARTICLE II of the Fifth Supplemental
Indenture delete the words "or any later series of Bonds."
7.15. In 7.15. of Article II of the Fifth Supplemental
Indenture delete the words "or any later series of Bonds." And
add the following language at the end of such 7.15:
"The Company will not sell, transfer or otherwise dispose of
all or substantially all of its properties and assets without the
consent in writing of the holders of 66 2/3% in principal amount
of any then outstanding Bonds, and in no event unless
A. Any such conveyance or transfer shall be in all respects
subject to the lien of the Indenture, and any such conveyance or
transfer shall be upon such terms as fully to preserve the lien
and security of the Indenture and all the rights and powers of
the Trustee and the holders of the Bonds.
B. Upon and simultaneously with any such conveyance or transfer,
the successor corporation or transferee shall execute and deliver
to the Trustee and indenture supplemental hereto in form
satisfactory to the Trustee expressly assuming the due and
punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed by the Company and
containing a grant, conveyance, transfer and mortgage in terms
sufficient to subject to the lien of the Indenture all property
and franchises (other than Excepted Property) then owned or which
many thereafter be acquired by such successor corporation or
transferee and thereupon such successor corporation or transferee
shall succeed to and be substituted for the Company hereunder
with the same effect as if it had been named herein as party of
the first part.
8.02. The covenant to provide a Renewal and Replacement
Fund in the provisions of 8.02. shall not apply in respect of
the 2001 Series Bonds or any later series of Bonds; provided,
however, nothing herein contained shall limit the right of the
Company to 2001 Series Bonds to satisfy its obligation under
8.02. in respect of any other series of Bonds.
9.19. The following section is added:
9.19. Redemption Price of 2001 Series Bonds.
The 2001 Series Bonds shall be redeemable at any time on or
after October 1, 1991, in whole or in part, at the option of the
Company, together with interest accrued to the date fixed for
redemption, plus a premium equal to the applicable percentage of
such amount determined as set forth in the tabulation in the form
of 2001 Series Bonds included in the Seventh Supplemental
Indenture dated as of October 1, 1986."
10.07. In the first sentence of the second paragraph of
10.07, after the phrase "in 9.17," add the words "the
redemption price of the 2001 Series Bonds shall be the applicable
price referred to in 9.19."
11.02. The first paragraph of 11.02. is hereby amended by
substituting for the words "sixty per cent. (60%)", the words
"sixty six and two-thirds percent. (66 2/3%)" in respect of the
2001 Series Bonds or any later series of Bonds.
15.01. 15.01 is hereby amended by adding in paragraphs A
and C after the word "cash," the words, "money, direct or
indirect obligations of the United States of America," in respect
of the 2001 Series Bonds or any later series of Bonds.
ARTICLE III.
The Trustee
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Seventh Supplemental Indenture or the due execution hereof
by the Company or for or in respect of the recitals and
statements contained herein, all of which recitals and statements
are made solely by the Company.
ARTICLE IV.
Miscellaneous Provisions
Except insofar as herein otherwise expressly provided, all
the provisions, terms and conditions of the Indenture as amended
shall be deemed to be incorporated in, and made a part of, this
Seventh Supplemental Indenture; and the Indenture, as
supplemented and amended by such seven supplemental indentures,
is in all respects ratified and confirmed and shall be read,
taken and construed as one and the same instrument.
This Seventh Supplemental Indenture may be executed in any
number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, and all such
counterparts, or as many of them as the Company and the Trustee
shall preserve undestroyed, shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, LAWRENCEBURG GAS COMPANY has caused this
Seventh Supplemental Indenture to be signed in its corporate name
by its President or a Vice-President and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant
Secretary and the Trustee, in evidence of its acceptance of the
Trust hereby created, has caused this Seventh Supplemental
Indenture to be signed in its corporate name by one of its Vice
Presidents and its corporate seal to be hereunto affixed and
attested by one of its Trust Officers, as of the day and year
first written above.
LAWRENCEBURG GAS COMPANY
By _/s/ C. Robert Everman
its Vice-President
Attest:
its Secretary
THE FIRST NATIONAL BANK OF
CINCINNATI
By /s/ Dennis Meyrose
Vice President & Trust
Officer
By /s/ Nancy V. Kelly
TRUST OFFICER
STATE OF OHIO )
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this
28th day of October, 1986 by C. Robert Everman, Vice-President,
Finance and Treasurer of Lawrenceburg Gas Company, an Indiana
Corporation, on behalf of the corporation.
/s/ Margaret L. Huber
Notary Public
STATE OF OHIO )
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this 29
day of October, 1986 by Dennis Meyrose, Vice President and Trust
Officer, and Nancy V. Kelly, Trust Officer, of The First National
Bank of Cincinnati, a national banking association organized and
existing under the laws of the United States of America, on
behalf of the corporation.
/s/ Cheri S. Geraci
Notary Public
CINERGY CORP. AND SUBSIDIARY COMPANIES
AGREEMENT FOR FILING CONSOLIDATED
INCOME TAX RETURNS AND FOR
ALLOCATION OF CONSOLIDATED INCOME
TAX LIABILITIES AND BENEFITS
Cinergy Corp., a registered public utility holding company,
and its Subsidiaries hereby agree to join annually in the filing
of a consolidated Federal income tax return and to allocate the
consolidated Federal income tax liabilities and benefits among
the members of the consolidated group in accordance with the
provisions of this Agreement.
1. DEFINITIONS
"Consolidated tax" is the aggregate current Federal
income tax liability for a tax year, being the tax shown on the
consolidated Federal income tax return and any adjustments
thereto, as described in section 5 hereof.
"Corporate taxable income" is the positive taxable
income of an associate company for a tax year, computed as though
such company had filed a separate return on the same basis as
used in the consolidated return, except that dividend income from
associate companies shall be disregarded, and other intercompany
transactions, eliminated in consolidation, shall be given
appropriate effect.
"Corporate taxable loss" is the taxable loss of an
associate company for a tax year, computed as though such company
had filed a separate return on the same basis as used in the
consolidated return, except that dividend income from associate
companies shall be disregarded, and other intercompany
transactions, eliminated in consolidation, shall be given
appropriate effect.
"Corporate tax credit" is a negative separate regular
tax of a subsidiary company for a tax year, equal to the amount
by which the consolidated regular tax is reduced by including the
corporate taxable loss of such subsidiary company in the
consolidated tax return.
"Separate return tax" is the tax on the corporate
taxable income or loss of an associate company as though such
company were not a member of a consolidated group.
These definitions shall apply, as appropriate, in the
context of the regular income tax and the Alternative Minimum Tax
("AMT") unless otherwise indicated in this Agreement.
2. TAX ALLOCATION PROCEDURES
The consolidated tax shall be allocated among the
members of the group consistent with Rule 45(c) of the Public
Utility Holding Company Act of 1935, utilizing the separate
"corporate taxable income" method, in the following manner:
a) Each subsidiary which has a corporate taxable
loss will be entitled to a corporate tax credit equal to the
amount by which the consolidated regular income tax is reduced by
including the corporate tax loss of such subsidiary in the
consolidated tax return. The members having corporate taxable
income will be allocated an amount of regular income tax
liability equal to the sum of the consolidated regular tax
liability and the corporate tax credits allocated to the
subsidiaries having corporate tax losses based on the ratio that
each such member's corporate taxable income bears to the total
corporate taxable income of all members having corporate taxable
income.
If the aggregate of the members' corporate tax
losses are not entirely utilized on the current year's
consolidated return, the consolidated carry back or carry forward
of such losses to the applicable taxable year(s) will be
allocated to each member having a corporate taxable loss in the
ratio that such member's separate corporate tax loss bears to the
total corporate tax losses of all members having corporate
taxable losses.
b) The consolidated Environmental Tax will be
allocated among the members of the group by applying the
procedures set forth in subsection a) above, except that the
basis for allocation will be Alternative Minimum Taxable Income
("AMTI") rather than regular corporate taxable income.
c) The consolidated AMT will be allocated among the
members in accordance with the procedures and principles set
forth in Proposed Treasury Regulation section 1.1502-55 in the
form such Regulation existed on the date on which this Agreement
was executed.
d) Tax benefits such as general business credits,
foreign tax benefits, or other tax credits shall be apportioned
directly to those members whose investments or contributions
generated the credit or benefit.
If the credit or benefit can not be entirely
utilized to offset current consolidated tax, the consolidated
credit carryback or carryforward shall be apportioned to those
members whose investments or contributions generated the credit
or benefit in proportion to the relative amounts of credits or
benefits generated by each member.
e) If the amount of consolidated tax allocated to
any subsidiary under this Agreement, as determined above, exceeds
the separate return tax of such subsidiary, such excess shall be
reallocated among those members whose allocated tax liability is
less than the amount of their respective separate return tax
liabilities. The reallocation shall be proportionate to the
respective reductions in separate return tax liability of such
members. Any remaining unallocated tax liability shall be
assigned to Cinergy Corp.. The term "tax" and "tax liability"
used in this subsection shall include regular tax, Environmental
Tax and AMT.
3. TAX PAYMENTS AND COLLECTIONS FOR ALLOCATIONS
Cinergy Corp. shall make any calculations on behalf of
the members necessary to comply with the estimated tax provisions
of the Internal Revenue Code of 1986 as amended (the "Code").
Based on such calculations Cinergy Corp. shall charge or refund
to the members appropriate amounts at intervals consistent with
the dates indicated by Code section 6655. Cinergy Corp. shall be
responsible for paying to the Internal Revenue Service the
consolidated current Federal income tax liability.
After filing the consolidated Federal income tax return
and allocating the consolidated tax liability among the members,
Cinergy Corp. shall charge or credit, as appropriate, the members
to reflect the difference between prior payments or credits and
their current tax as allocated under this Agreement.
4. ALLOCATION OF STATE TAX LIABILITIES OR BENEFITS
State and local income tax liabilities will be
allocated, where appropriate, among members in accordance with
principles similar to those employed in this Agreement for the
allocation of consolidated Federal income tax liability.
5. TAX RETURN ADJUSTMENTS
In the event any consolidated tax return is
subsequently adjusted by the Internal Revenue Service, state tax
authorities, amended returns, claims for refund, or otherwise,
such adjustments shall be reflected in the same manner as though
they had formed part of the original consolidated return.
Interest paid or received, and penalties imposed on account of
any adjustment will be allocated to the responsible member.
6. NEW MEMBERS
If, at any time, any other company becomes a member of
the Affiliated Group, the parties hereto agree that such new
member may become a party to this Agreement by executing a
duplicate copy of this Agreement. Unless otherwise specified,
such new member shall have similar rights and obligations of all
other members under this Agreement.
7. MEMBERS LEAVING THE AFFILIATED GROUP
In the event that any member of the Affiliated Group at
any time leaves the Group and, under any applicable statutory
provision or regulation, that member is assigned and is deemed to
take with it all or a portion of any of the tax attributes
(including, but not limited to, net operating losses, credit
carryforwards, and Minimum Tax Credit carryforwards) of the
Affiliated Group, then, to the extent the amount of the
attributes so assigned differs from the amount of such attributes
previously allocated to such member under this Agreement, the
leaving member shall appropriately settle with the Group. Such
settlement shall consist of payment on a dollar-for-dollar basis
for all differences in credits and, in the case of net operating
loss differences, in an amount computed by reference to the
highest marginal corporate tax rate. The settlement amounts
shall be allocated among the remaining members of the Group in
proportion to the relative level of attributes possessed by each
member and the attributes of each member shall be adjusted
accordingly.
8. SUCCESSORS, ASSIGNS
The provisions and terms of this Agreement shall be
binding on and inure to the benefit of any successor or assignee
by reason of merger, acquisition of assets, or otherwise, of any
of the members hereto.
9. AMENDMENT AND TERMINATION
This Agreement may be amended at any time by the
written agreement of the parties hereto at the date of such
amendment and may be terminated at any time by the written
consent of all such parties.
10. GOVERNING LAW
This Agreement is made under the law of the State of
Ohio, which law shall be controlling in all matters relating to
the interpretation, construction, or enforcement hereof.
11. EFFECTIVE DATE
This Agreement is effective for the allocation of the
current Federal income tax liabilities of the members for the
consolidated tax year 1994 and all subsequent years until this
Agreement is revised in writing.
12. APPROVAL
This Agreement is subject to the approval of the
Securities and Exchange Commission. A copy of this Agreement
will be filed as an exhibit to the Form U5S Annual Report to the
Securities and Exchange Commission by Cinergy Corp. for the year
ended December 31, 1995.
The above procedure for apportioning the consolidated annual
net current federal and state tax liabilities and tax benefits of
Cinergy Corp. and its consolidated affiliates have been agreed to
by each of the below listed members of the consolidated group as
evidenced by the signature of an officer of each company.
Cinergy Corp.
By:/s/ J. Wayne Leonard_ ____________ Date:1-23-95_________
Cinergy Services, Inc.
By:/s/ J. Wayne Leonard _____________ Date:1-23-95_________
The Cincinnati Gas & Electric Co.
By:/s/ William L. Sheafer____________ Date:1-23-95_________
PSI Energy, Inc.
By:/s/ J. Wayne Leonard______________ Date:1-23-95_________
PSI Energy Argentina, Inc.
By:/s/ J. Wayne Leonard______________ Date:1-23-95_________
South Construction Company, Inc.
By:/s/ J. Wayne Leonard______________ Date:1-23-95_________
The Union Light, Heat & Power Co.
By:/s/ William L. Sheafer____________ Date:1-23-95_________
Miami Power Corp.
By:/s/ William L. Sheafer____________ Date:1-23-95_________
Lawrenceburg Gas Co.
By:/s/ William L. Sheafer____________ Date:1-23-95_________
The West Harrison Gas & Electric Co.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
Tri-State Improvement Co.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
KO Transmission Co.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
Cinergy Investments, Inc.
By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______
PSI Recycling, Inc.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
Power Equipment Supply Company
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI Power Resource Operations, Inc.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI Power Resource Development, Inc.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI Sunnyside, Inc.
By:/s/ Charles J. Winger ____________ Date:__1-23-95_______
PSI Environmental Corp.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI International, Inc.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI T&D International, Inc.
By:/s/ J. Wayne Leonard _____________ Date:__1-23-95_______
PSI Yacyreta, Inc.
By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______
Wholesale Power Services, Inc.
By:/s/ Charles J. Winger_____________ Date:__1-23-95_______
PSI Argentina, Inc.
By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______
CG&E Resource Marketing, Inc.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
CGE ECK, Inc.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
Costanera Power Corp.
By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______
Enertech Associates International Inc.
By:/s/ William L. Sheafer____________ Date:__1-23-95_______
Subsidiary Listing
The following is a listing, as of March 27, 1996, of the subsidiaries of each
registrant and their state of incorporation or organization indented to show
degree of remoteness from registrant.
State of Organization
Name of Company_______________ or Incorporation___
Cinergy Corp. Delaware
The Cincinnati Gas & Electric Company Ohio
The Union Light, Heat and Power Company Kentucky
Lawrenceburg Gas Company Indiana
The West Harrison Gas and Electric Company Indiana
Miami Power Corporation Indiana
KO Transmission Company Kentucky
Tri-State Improvement Company Ohio
PSI Energy, Inc. Indiana
South Construction Company, Inc Indiana
PSI Energy Argentina, Inc.* Indiana
Cinergy Services, Inc. Delaware
Cinergy Investments, Inc. Delaware
CGE ECK, Inc. Delaware
Cinergy Resources, Inc. Delaware
Cinergy Technology, Inc. Indiana
PSI Argentina, Inc.* Indiana
Costanera Power Corp.* Indiana
PSI International, Inc. Indiana
PSI Power Resource Development, Inc. Indiana
PSI Power Resource Operations, Inc. Indiana
PSI Recycling, Inc. Indiana
PSI Sunnyside, Inc. Indiana
PSI T&D International, Inc. Indiana
PSI Yacyreta, Inc. Indiana
Power Equipment Supply Co. Indiana
Power International, Inc. Ohio
Beheer-En Belegginsmaatschappij Bruwabel B.V. Netherlands
Power Development s.r.o. Czech Republic
Power International s.r.o. Czech Republic
Wholesale Power Services, Inc. Indiana
Cinergy Cooling Corp. Ohio
*EWG or FUCO
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors of Cinergy Corp.:
We have audited the consolidated balance sheets of CINERGY CORP. (a Delaware
Corporation) and its subsidiary companies as of December 31, 1995, and the
related consolidated statements of income, changes in common stock equity and
cash flows for year then ended. 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 in accordance with generally accepted auditing
standards. Those standards require that we plan and perform our audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Cinergy Corp. and its
subsidiary companies as of December 31, 1995, and the results of their
operations and their cash flows for the year then ended, in conformity with
generally accepted accounting principles.
Arthur Andersen LLP
Cincinnati, Ohio,
January 25, 1996
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands, except per share amounts)
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI
Cinergy Corp. Services, Inc. & Electric Company 2/Energy, Inc. 1/
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric - - $1,437,223 3/ $1,248,035 3/
Gas - - 410,852 -
Other - 190,167 - -
- 190,167 1,848,075 1,248,035
OPERATING EXPENSES
Fuel used in electric production - - 327,353 389,401
Gas purchased - - 206,250 -
Purchased and exchanged power
Non-affiliated companies - - 13,870 33,762
Affiliated companies - - 42,575 30,104
Other operation 781 184,646 291,874 228,508
Maintenance - - 94,688 87,492
Depreciation - 32 158,986 120,773
Post-in-service deferred operating
expenses - net - - 3,290 (5,790)
Amortization of phase-in deferrals - - 9,091 -
Income taxes (488) - 136,386 85,043
Taxes other than income taxes 84 5,697 203,680 51,853
377 190,375 1,488,043 1,021,146
OPERATING INCOME (LOSS) (377) (208) 360,032 226,889
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - - 1,790 174
Post-in-service carrying costs - - - 3,186
Phase-in deferred return - - 8,537 -
Income taxes 537 - 4,587 941
Equity in earnings of subsidiaries 349,086 - - -
Other - net (211) (1) 4,221 (3,188)
349,412 (1) 19,135 1,113
INCOME (LOSS) BEFORE INTEREST AND
OTHER CHARGES 349,035 (209) 379,167 228,002
INTEREST AND OTHER CHARGES
Interest on long-term debt - - 143,334 70,577
Other interest 1,853 4 3,486 15,821
Allowance for borrowed funds used
during construction - - (3,854) (4,211)
Preferred dividend requirements
of subsidiaries - - - -
1,853 4 142,966 82,187
NET INCOME (LOSS) 347,182 (213) 236,201 145,815
PREFERRED DIVIDEND REQUIREMENT - - 17,673 13,180
INCOME APPLICABLE TO COMMON STOCK $347,182 ($213) $218,528 $132,635
AVERAGE COMMON SHARES OUTSTANDING
EARNINGS PER COMMON SHARE
DIVIDENDS DECLARED PER COMMON SHARE
<FN>
1/ PSI Energy, Inc. is the parent company of PSI Energy Argentina, Inc. and South Construction Co.,
neither of which had any activity for 1995.
2/ See accompanying consolidating statements of income (loss).
3/ Includes $30,104 and $42,575 from affiliated companies for CG&E and PSI, respectively.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY CORP.
CONSOLIDATING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands, except per share amounts)
Consolidated
Cinergy Consolidated
Investments, Inc. 2/ Eliminations Cinergy Corp.
<S> <C> <C> <C>
OPERATING REVENUES
Electric $10,514 ($75,191) $2,620,581
Gas - - 410,852
Other - (190,167) -
10,514 (265,358) 3,031,433
OPERATING EXPENSES
Fuel used in electric production - - 716,754
Gas purchased - - 206,250
Purchased and exchanged power
Non-affiliated companies - - 47,632
Affiliated companies - (72,679) -
Other operation 13,727 (184,949) 534,587
Maintenance - - 182,180
Depreciation - (32) 279,759
Post-in-service deferred operating
expenses - net - - (2,500)
Amortization of phase-in deferrals - - 9,091
Income taxes (1,479) - 219,462
Taxes other than income taxes 469 (5,697) 256,086
12,717 (263,357) 2,449,301
OPERATING INCOME (LOSS) (2,203) (2,001) 582,132
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - - 1,964
Post-in-service carrying costs - - 3,186
Phase-in deferred return - - 8,537
Income taxes (674) - 5,391
Equity in earnings of subsidiaries - (349,086) -
Other - net 4,262 (1,586) 3,497
3,588 (350,672) 22,575
INCOME (LOSS) BEFORE INTEREST AND
OTHER CHARGES 1,385 (352,673) 604,707
INTEREST AND OTHER CHARGES
Interest on long-term debt - - 213,911
Other interest 1,248 (1,586) 20,826
Allowance for borrowed funds used
during construction - - (8,065)
Preferred dividend requirements
of subsidiaries - 30,853 30,853
1,248 29,267 257,525
NET INCOME (LOSS) 137 (381,940) 347,182
PREFERRED DIVIDEND REQUIREMENT - (30,853) -
INCOME APPLICABLE TO COMMON STOCK $137 ($351,087) $347,182
AVERAGE COMMON SHARES OUTSTANDING 156,620
EARNINGS PER COMMON SHARE $2.22
DIVIDENDS DECLARED PER COMMON SHARE $1.72
<FN>
1/ PSI Energy, Inc. is the parent company of PSI Energy Argentina, Inc. and South Construction Co.,
neither of which had any activity for 1995.
2/ See accompanying consolidating statements of income (loss).
3/ Includes $30,104 and $42,575 from affiliated companies for CG&E and PSI, respectively.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy The Cincinnati Gas
Cinergy Corp. Services, Inc. & Electric Company 1/
<S> <C> <C> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric - - $4,564,711
Gas - - 680,339
Common - 1,241 183,422
- 1,241 5,428,472
Accumulated depreciation - - 1,730,232
- 1,241 3,698,240
Construction work in progress - - 77,661
Total utility plant - 1,241 3,775,901
CURRENT ASSETS
Cash and temporary cash investments 592 - 6,612
Restricted deposits - - 1,144
Accounts receivable - net 2 - 292,493
Accounts receivable from affiliated companies 26,953 14,116 21,409
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - - 40,395
Gas stored for current use - - 21,493
Other materials and supplies - - 55,388
Property taxes applicable to subsequent year - - 116,822
Prepayments and other - - 30,572
27,547 14,116 586,328
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and deferred operating expenses - - 148,316
Phase-in deferred return and depreciation - - 100,388
Deferred demand-side management costs - - 19,158
Amounts due from customers - income taxes - - 397,155
Deferred merger costs - - 14,538
Unamortized costs of reacquiring debt - - 39,428
Other - - 41,025
Investment in subsidiaries 2,563,727 - -
Other (10) 602 54,691
2,563,717 602 814,699
$2,591,264 $15,959 $5,176,928
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $.01 par value; authorized shares -
600,000,000; outstanding shares - 157,670,141 $1,577 - -
Common stock of subsidiaries - - 762,136
Paid-in capital 1,597,050 - 339,101
Retained earnings (deficit) 950,216 (213) 427,226
Total common stock equity 2,548,843 (213) 1,528,463
CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES
Not subject to mandatory redemption - - 40,000
Subject to mandatory redemption - - 160,000
LONG-TERM DEBT - - 1,702,650
Total capitalization 2,548,843 (213) 3,431,113
CURRENT LIABILITIES
Long-term debt due within one year - - 151,500
Notes payable - - -
Accounts payable 100 7,635 133,999
Accounts payable to affiliated companies 42,381 8,318 -
Litigation settlement - - -
Accrued taxes 197 - 250,189
Accrued interest - - 31,299
Other - - 45,145
42,678 15,953 612,132
OTHER LIABILITIES
Deferred income taxes (258) - 795,385
Unamortized investment tax credits - - 129,372
Accrued pension and other postretirement benefit costs - - 117,641
Other 1 219 91,285
(257) 219 1,133,683
$2,591,264 $15,959 $5,176,928
<FN>
1/ See accompanying consolidating balance sheets.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY CORP.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
Consolidated Cinergy
PSI Energy, Inc. 1/ Investments, Inc. 1/ Eliminations
<S> <C> <C> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $4,052,984 - -
Gas - - -
Common - - -
4,052,984 - -
Accumulated depreciation 1,637,169 - -
2,415,815 - -
Construction work in progress 58,191 - -
Total utility plant 2,474,006 - -
CURRENT ASSETS
Cash and temporary cash investments 15,522 12,326 -
Restricted deposits 1,187 5 -
Accounts receivable - net 73,419 5,236 -
Accounts receivable from affiliated companies 20,568 20,537 (103,583)
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 82,014 - -
Gas stored for current use - - -
Other materials and supplies 29,462 226 -
Property taxes applicable to subsequent year - - -
Prepayments and other 1,234 541 -
223,406 38,871 (103,583)
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and deferred operating expenses 38,874 - -
Phase-in deferred return and depreciation - - -
Deferred demand-side management costs 110,242 - -
Amounts due from customers - income taxes 26,338 - -
Deferred merger costs 42,286 - -
Unamortized costs of reacquiring debt 34,476 - -
Other 33,886 - -
Investment in subsidiaries - - (2,563,727)
Other 92,056 (6,784) (4,434)
378,158 (6,784) (2,568,161)
$3,075,570 $32,087 ($2,671,744)
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $.01 par value; authorized shares -
600,000,000; outstanding shares - 157,670,141 - - -
Common stock of subsidiaries 539 - (762,675)
Paid-in capital 403,253 24,418 (766,772)
Retained earnings (deficit) 625,275 (12,971) (1,039,317)
Total common stock equity 1,029,067 11,447 (2,568,764)
CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES
Not subject to mandatory redemption 187,897 - -
Subject to mandatory redemption - - -
LONG-TERM DEBT 828,116 - -
Total capitalization 2,045,080 11,447 (2,568,764)
CURRENT LIABILITIES
Long-term debt due within one year 50,400 - -
Notes payable 198,531 - (32,731)
Accounts payable 116,817 3,754 1,098
Accounts payable to affiliated companies - 20,153 (70,852)
Litigation settlement 80,000 - -
Accrued taxes 65,851 948 -
Accrued interest 24,696 - -
Other 16,000 793 -
552,295 25,648 (102,485)
OTHER LIABILITIES
Deferred income taxes 331,876 (5,608) (495)
Unamortized investment tax credits 56,354 - -
Accrued pension and other postretirement benefit costs 54,130 - -
Other 35,835 600 -
478,195 (5,008) (495)
$3,075,570 $32,087 ($2,671,744)
<FN>
1/ See accompanying consolidating balance sheets.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY CORP.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy Corp.
<S> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $8,617,695
Gas 680,339
Common 184,663
9,482,697
Accumulated depreciation 3,367,401
6,115,296
Construction work in progress 135,852
Total utility plant 6,251,148
CURRENT ASSETS
Cash and temporary cash investments 35,052
Restricted deposits 2,336
Accounts receivable - net 371,150
Accounts receivable from affiliated companies -
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 122,409
Gas stored for current use 21,493
Other materials and supplies 85,076
Property taxes applicable to subsequent year 116,822
Prepayments and other 32,347
786,685
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and deferred operating expenses 187,190
Phase-in deferred return and depreciation 100,388
Deferred demand-side management costs 129,400
Amounts due from customers - income taxes 423,493
Deferred merger costs 56,824
Unamortized costs of reacquiring debt 73,904
Other 74,911
Investment in subsidiaries -
Other 136,121
1,182,231
$8,220,064
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $.01 par value; authorized shares -
600,000,000; outstanding shares - 157,670,141 $1,577
Common stock of subsidiaries -
Paid-in capital 1,597,050
Retained earnings (deficit) 950,216
Total common stock equity 2,548,843
CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES
Not subject to mandatory redemption 227,897
Subject to mandatory redemption 160,000
LONG-TERM DEBT 2,530,766
Total capitalization 5,467,506
CURRENT LIABILITIES
Long-term debt due within one year 201,900
Notes payable 165,800
Accounts payable 263,403
Accounts payable to affiliated companies -
Litigation settlement 80,000
Accrued taxes 317,185
Accrued interest 55,995
Other 61,938
1,146,221
OTHER LIABILITIES
Deferred income taxes 1,120,900
Unamortized investment tax credits 185,726
Accrued pension and other postretirement benefit costs 171,771
Other 127,940
1,606,337
$8,220,064
<FN>
1/ See accompanying consolidating balance sheets.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI
Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. 2/
<S> <C> <C> <C> <C>
Operating Activities
Net income (loss) $347,182 ($213) $236,201 $145,815
Items providing (using) cash currently:
Depreciation - 32 158,986 120,773
Deferred income taxes and investment tax
credits - net - - 26,938 5,201
Allowance for equity funds used during
construction - - (1,790) (174)
Regulatory assets - net - - 16,654 (15,628)
Changes in current assets and current
liabilities
Restricted deposits - - (1,046) 16
Accounts receivable - net 28,190 (13,367) (44,882) (57,926)
Materials, supplies, and fuel - - 14,039 31,748
Accounts payable 41,481 15,203 13,182 (25,958)
Accrued taxes and interest (720) - 21,935 34,078
Other items - net (163,058) (1,655) 631 18,714
Net cash provided by (used in)
operating activities 253,075 - 440,848 256,659
Financing Activities
Issuance of common stock 60,139 - - -
Issuance of long-term debt - - 344,280 -
Funds on deposit from issuance of long-term debt - - - 9,987
Retirement of preferred stock of subsidiaries - - (93,450) (16)
Redemption of long-term debt - - (338,378) (60,455)
Change in short-term debt (75,000) - (14,500) 4,958
Dividends on preferred stock - - (17,673) (13,181)
Dividends on common stock (268,851) - (219,550) -
Capital contribution from parent company - - - 13,926
Net cash provided by (used in)
financing activities (283,712) - (339,271) (44,781)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) - - (138,325) (186,580)
Deferred demand-side management costs - net - - (9,156) (16,117)
Equity investment in Argentine utility 19,799 - - -
Net cash provided by (used in)
investing activities 19,799 - (147,481) (202,697)
Net increase (decrease) in cash and
temporary cash investments (10,838) - (45,904) 9,181
Cash and temporary cash investments at
beginning of period 11,430 - 52,516 6,341
Cash and temporary cash investments at
end of period $592 - $6,612 $15,522
<FN>
1/ See accompanying consolidating statements of
cash flows.
2/ PSI Energy, Inc. is the parent company of
PSI Argentina, Inc. and South Construction Co.,
neither of which had any activity for 1995.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY CORP.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy Consolidated
Investments, Inc. 1/ Eliminations Cinergy Corp.
<S> <C> <C> <C>
Operating Activities
Net income (loss) $137 ($381,940) $347,182
Items providing (using) cash currently:
Depreciation - (32) 279,759
Deferred income taxes and investment tax
credits - net (3,728) - 28,411
Allowance for equity funds used during
construction - - (1,964)
Regulatory assets - net - - 1,026
Changes in current assets and current
liabilities
Restricted deposits (5) - (1,035)
Accounts receivable - net (23,850) 40,194 (71,641)
Materials, supplies, and fuel 5,427 - 51,214
Accounts payable 14,664 (61,636) (3,064)
Accrued taxes and interest 1,342 - 56,635
Other items - net (2,826) 165,066 16,872
Net cash provided by (used in)
operating activities 947 (248,134) 703,395
Financing Activities
Issuance of common stock - - 60,139
Issuance of long-term debt - - 344,280
Funds on deposit from issuance of long-term debt - - 9,987
Retirement of preferred stock of subsidiaries - - (93,466)
Redemption of long-term debt - - (398,833)
Change in short-term debt - 21,442 (63,100)
Dividends on preferred stock - 30,854 -
Dividends on common stock - 219,550 (268,851)
Capital contribution from parent company - (13,926) -
Net cash provided by (used in)
financing activities - 257,920 (409,844)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) - - (324,905)
Deferred demand-side management costs - net - - (25,273)
Equity investment in Argentine utility 9,786 (9,786) 19,799
Net cash provided by (used in)
investing activities 9,786 (9,786) (330,379)
Net increase (decrease) in cash and
temporary cash investments 10,733 - (36,828)
Cash and temporary cash investments at
beginning of period 1,593 - 71,880
Cash and temporary cash investments at
end of period $12,326 - $35,052
<FN>
1/ See accompanying consolidating statements of
cash flows.
2/ PSI Energy, Inc. is the parent company of
PSI Argentina, Inc. and South Construction Co.,
neither of which had any activity for 1995.
</TABLE>
<PAGE>
<TABLE>
<CAPTION
CINERGY CORP.
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(dollars in thousands)
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI
Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. 1/
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $2,414,271 - $1,532,972 $882,951
Common stock 2/ 25 - -
Paid-in capital 61,392 1,227 18
Contribution from parent company - 13,926
Retained earnings (deficit)
Net income (loss) 347,182 (213) 236,201 145,815
Dividends on preferred stock - - (17,673) (13,181)
Dividends on common stock (268,851) - (219,550) -
Other (5,176) - (4,714) (462)
BALANCE AT DECEMBER 31, 1995 $2,548,843 ($213) $1,528,463 $1,029,067
<FN>
1/ See accompanying consolidating statements
of changes in common stock equity.
2/ Par values, authorized shares, and
outstanding shares are as follows:
Par Value
Cinergy $0.01
CG&E $8.50
PSI $.01 stated value
Authorized shares
(in thousands)
Cinergy 600,000
CG&E 120,000
PSI 60,000
Outstanding Shares
(in thousands)
Cinergy 157,670
CG&E 89,663
PSI 53,914
</TABLE>
<TABLE>
<CAPTION
(CONTINUED)
CINERGY CORP.
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(dollars in thousands)
Consolidated
Cinergy Consolidated
Investments, Inc. Eliminations Cinergy Corp
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $11,310 ($2,427,233) $2,414,271
Common stock 2/ - 25
Paid-in capital - (1,245) 61,392
Contribution from parent company - (13,926) -
Retained earnings (deficit)
Net income (loss) 137 (381,940) 347,182
Dividends on preferred stock - 30,854 -
Dividends on common stock - 219,550 (268,851)
Other - 5,176 (5,176)
BALANCE AT DECEMBER 31, 1995 $11,447 ($2,568,764) $2,548,843
<FN>
1/ See accompanying consolidating statements
of changes in common stock equity.
2/ Par values, authorized shares, and
outstanding shares are as follows:
Par Value
Cinergy $0.01
CG&E $8.50
PSI $.01 stated value
Authorized shares
(in thousands)
Cinergy 600,000
CG&E 120,000
PSI 60,000
Outstanding Shares
(in thousands)
Cinergy 157,670
CG&E 89,663
PSI 53,914
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami
& Electric Company Power Company Gas Company Electric Company Power Corp.
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES
Electric $1,393,633 $187,180 - $510 $80
Gas 335,500 70,288 6,680 - -
1,729,133 257,468 6,680 510 80
OPERATING EXPENSES
Fuel used in electric production 327,433 (80) - - -
Gas purchased 166,394 36,745 3,376 - -
Purchased and exchanged power
Non-affiliated companies 13,870 - - - -
Affiliated companies 42,575 142,388 - 356 -
Other operation 263,773 30,712 1,364 66 40
Maintenance 89,922 4,580 141 15 30
Depreciation 147,132 11,438 397 18 1
Post-in-service deferred operating
expenses - net 3,290 - - - -
Amortization of phase-in deferrals 9,091 - - - -
Income taxes 128,129 7,887 355 14 1
Taxes other than income taxes 199,404 3,968 290 13 6
1,391,013 237,638 5,923 482 78
OPERATING INCOME 338,120 19,830 757 28 2
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction 1,719 71 - - -
Phase-in deferred return 8,537 - - - -
Income taxes 4,723 (44) (2) - -
Equity in earnings of subsidiaries 12,966 - - - -
Other - net 6,888 6 5 - -
34,833 33 3 - -
INCOME BEFORE INTEREST 372,953 19,863 760 28 2
INTEREST
Interest on long-term debt 136,050 7,161 123 - -
Other interest 2,988 728 33 4 -
Allowance for borrowed funds used
during construction (2,286) (198) (5) - -
136,752 7,691 151 4 -
NET INCOME 236,201 12,172 609 24 2
PREFERRED DIVIDEND REQUIREMENT 17,673 - - - -
INCOME APPLICABLE TO COMMON STOCK $218,528 $12,172 $609 $24 $2
<FN>
1/ Includes $30,104 from affiliated
companies
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Tri-State KO The Cincinnati Gas
Improvement Co. Transmission Co.Eliminations & Electric Company
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric - - ($144,180) $1,437,223
Gas - - (1,616) 410,852
- - (145,796) 1,848,075
OPERATING EXPENSES
Fuel used in electric production - - - 327,353
Gas purchased - - (265) 206,250
Purchased and exchanged power
Non-affiliated companies - - - 13,870
Affiliated companies - - (142,744) 42,575
Other operation - - (4,081) 291,874
Maintenance - - - 94,688
Depreciation - - - 158,986
Post-in-service deferred operating
expenses - net - - - 3,290
Amortization of phase-in deferrals - - - 9,091
Income taxes - - - 136,386
Taxes other than income taxes - - (1) 203,680
- - (147,091) 1,488,043
OPERATING INCOME - - 1,295 360,032
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - - - 1,790
Phase-in deferred return - - - 8,537
Income taxes (90) - - 4,587
Equity in earnings of subsidiaries - - (12,966) -
Other - net 697 - (3,375) 4,221
607 - (16,341) 19,135
INCOME BEFORE INTEREST 607 - (15,046) 379,167
INTEREST
Interest on long-term debt - - - 143,334
Other interest 1,812 - (2,079) 3,486
Allowance for borrowed funds used
during construction (1,364) - (1) (3,854)
448 - (2,080) 142,966
NET INCOME 159 - (12,966) 236,201
PREFERRED DIVIDEND REQUIREMENT - - - 17,673
INCOME APPLICABLE TO COMMON STOCK $159 - ($12,966) $218,528
<FN>
1/ Includes $30,104 from affiliated
companies
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
The Union Light,
The Cincinnati Gas Heat and Lawrenceburg
& Electric Company Power Company Gas Company
<S> <C> <C> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $4,375,075 $188,508 -
Gas 525,672 140,604 14,063
Common 164,354 19,068 -
5,065,101 348,180 14,063
Accumulated depreciation 1,613,137 112,812 3,549
3,451,964 235,368 10,514
Construction work in progress 69,768 7,863 30
Total utility plant 3,521,732 243,231 10,544
CURRENT ASSETS
Cash and temporary cash investments 4,401 1,750 316
Restricted deposits 1,144 - -
Accounts receivable - net 252,220 37,895 1,455
Accounts receivable from affiliated companies 67,522 - -
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 40,395 - -
Gas stored for current use 16,966 4,513 14
Other materials and supplies 54,173 1,215 -
Property taxes applicable to subsequent year 114,472 2,350 -
Prepayments and other 30,066 485 21
581,359 48,208 1,806
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and
deferred operating expenses 148,316 - -
Phase-in deferred return and depreciation 100,388 - -
Deferred demand-side management costs 19,158 - -
Amounts due from customers - income taxes 397,146 - -
Deferred merger costs 12,753 1,785 -
Unamortized costs of reacquiring debt 36,899 2,526 3
Other 38,477 2,548 -
Investment in subsidiaries 143,362 - -
Other 24,101 1,499 12
920,600 8,358 15
$5,023,691 $299,797 $12,365
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $8.50 par value; authorized shares -
120,000,000; outstanding shares - 89,663,086 $762,136 - -
Common stock of subsidiaries - 8,780 539
Paid-in capital 339,101 18,839 -
Retained earnings 427,226 82,863 5,106
Total common stock equity 1,528,463 110,482 5,645
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption 40,000 - -
Subject to mandatory redemption 160,000 - -
LONG-TERM DEBT 1,647,072 54,377 1,200
Total capitalization 3,375,535 164,859 6,845
CURRENT LIABILITIES
Long-term debt due within one year 136,500 15,000 -
Accounts payable 121,610 11,057 576
Accounts payable to affiliated companies - 44,708 1,893
Accrued taxes 247,872 1,993 (72)
Accrued interest 29,717 1,549 32
Other 39,316 5,505 318
575,015 79,812 2,747
OTHER LIABILITIES
Deferred income taxes 768,198 23,728 894
Unamortized investment tax credits 124,044 5,079 234
Accrued pension and other postretirement
benefit costs 104,960 12,202 461
Other 75,939 14,117 1,184
1,073,141 55,126 2,773
$5,023,691 $299,797 $12,365
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
West
Harrison Gas and Miami Tri-State KO
Electric Company Power Corp. Improvement Co. Transmission Co.
<S> <C> <C> <C> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $565 $563 - -
Gas - - - -
Common - - - -
565 563 - -
Accumulated depreciation 181 553 - -
384 10 - -
Construction work in progress - - - -
Total utility plant 384 10 - -
CURRENT ASSETS
Cash and temporary cash investments 25 28 92 -
Restricted deposits - - - -
Accounts receivable - net 75 - 848 -
Accounts receivable from affiliated companies - - 594 -
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - - - -
Gas stored for current use - - - -
Other materials and supplies - - - -
Property taxes applicable to subsequent year - - - -
Prepayments and other - - - -
100 28 1,534 -
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and
deferred operating expenses - - - -
Phase-in deferred return and depreciation - - - -
Deferred demand-side management costs - - - -
Amounts due from customers - income taxes 9 - - -
Deferred merger costs - - - -
Unamortized costs of reacquiring debt - - - -
Other - - - -
Investment in subsidiaries - - - -
Other - - 29,079 -
9 - 29,079 -
$493 $38 $30,613 -
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $8.50 par value; authorized shares -
120,000,000; outstanding shares - 89,663,086 - - - -
Common stock of subsidiaries 20 1 25 -
Paid-in capital - - - -
Retained earnings 271 15 54 -
Total common stock equity 291 16 79 -
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption - - - -
Subject to mandatory redemption - - - -
LONG-TERM DEBT - - 26,849 -
Total capitalization 291 16 26,928 -
CURRENT LIABILITIES
Long-term debt due within one year - - - -
Accounts payable - - 756 -
Accounts payable to affiliated companies 94 13 - -
Accrued taxes 3 4 389 -
Accrued interest 1 - - -
Other 6 - - -
104 17 1,145 -
OTHER LIABILITIES
Deferred income taxes 68 (32) 2,529 -
Unamortized investment tax credits 14 1 - -
Accrued pension and other postretirement
benefit costs 14 4 - -
Other 2 32 11 -
98 5 2,540 -
$493 $38 $30,613 -
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
The Cincinnati Gas
Eliminations & Electric Company
<S> <C> <C>
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric - $4,564,711
Gas - 680,339
Common - 183,422
- 5,428,472
Accumulated depreciation - 1,730,232
- 3,698,240
Construction work in progress - 77,661
Total utility plant - 3,775,901
CURRENT ASSETS
Cash and temporary cash investments - 6,612
Restricted deposits - 1,144
Accounts receivable - net - 292,493
Accounts receivable from affiliated companies (46,707) 21,409
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - 40,395
Gas stored for current use - 21,493
Other materials and supplies - 55,388
Property taxes applicable to subsequent year - 116,822
Prepayments and other - 30,572
(46,707) 586,328
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and
deferred operating expenses - 148,316
Phase-in deferred return and depreciation - 100,388
Deferred demand-side management costs - 19,158
Amounts due from customers - income taxes - 397,155
Deferred merger costs - 14,538
Unamortized costs of reacquiring debt - 39,428
Other - 41,025
Investment in subsidiaries (143,362) -
Other - 54,691
(143,362) 814,699
($190,069) $5,176,928
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $8.50 par value; authorized shares -
120,000,000; outstanding shares - 89,663,086 - $762,136
Common stock of subsidiaries (9,365) -
Paid-in capital (18,839) 339,101
Retained earnings (88,309) 427,226
Total common stock equity (116,513) 1,528,463
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption - 40,000
Subject to mandatory redemption - 160,000
LONG-TERM DEBT (26,848) 1,702,650
Total capitalization (143,361) 3,431,113
CURRENT LIABILITIES
Long-term debt due within one year - 151,500
Accounts payable - 133,999
Accounts payable to affiliated companies (46,708) -
Accrued taxes - 250,189
Accrued interest - 31,299
Other - 45,145
(46,708) 612,132
OTHER LIABILITIES
Deferred income taxes - 795,385
Unamortized investment tax credits - 129,372
Accrued pension and other postretirement
benefit costs - 117,641
Other - 91,285
- 1,133,683
($190,069) $5,176,928
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and
& Electric Company Power Company Gas Company Electric Company
<S> <C> <C> <C> <C>
Operating Activities
Net income $236,201 $12,172 $609 $24
Items providing (using) cash currently:
Depreciation 147,132 11,438 397 18
Deferred income taxes and investment tax
credits - net 25,572 652 244 2
Allowance for equity funds used during
construction (1,719) (71) - -
Regulatory assets - net 16,484 170 - -
Changes in current assets and current
liabilities
Restricted deposits (1,046) - - -
Accounts receivable - net (68,712) (4,003) (317) 4
Materials, supplies, and fuel 12,144 1,894 1 -
Accounts payable 9,319 34,110 470 (15)
Accrued taxes and interest 23,588 (1,457) (387) 2
Other items - net (15,657) 5,019 30 16
Net cash provided by (used in)
operating activities 383,306 59,924 1,047 51
Financing Activities
Issuance of long-term debt 329,576 14,704 - -
Retirement of preferred stock of subsidiaries (93,450) - - -
Redemption of long-term debt (301,342) (37,036) - -
Change in short-term debt - (14,500) - -
Dividends on preferred stock (17,673) - - -
Dividends on common stock (219,550) (3,512) - -
Net cash provided by (used in)
financing activities (302,439) (40,344) - -
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (118,538) (18,901) (841) (47)
Deferred demand-side management costs - net (9,156) - - -
Net cash provided by (used in)
investing activities (127,694) (18,901) (841) (47)
Net increase (decrease) in cash and
temporary cash investments (46,827) 679 206 4
Cash and temporary cash investments at
beginning of period 51,228 1,071 110 21
Cash and temporary cash investments at
end of period $4,401 $1,750 $316 $25
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Miami Tri-State KO
Power Corp. Improvement Co. Transmission Co. Eliminations
<S> <C> <C> <C> <C>
Operating Activities
Net income $2 $159 - ($12,966)
Items providing (using) cash currently:
Depreciation 1 - - -
Deferred income taxes and investment tax
credits - net - - - 468
Allowance for equity funds used during
construction - - - -
Regulatory assets - net - - - -
Changes in current assets and current
liabilities
Restricted deposits - - - -
Accounts receivable - net 1 (1,302) - 29,447
Materials, supplies, and fuel - - - -
Accounts payable 13 (1,267) - (29,448)
Accrued taxes and interest 1 188 - -
Other items - net - 4,937 - 6,286
Net cash provided by (used in)
operating activities 18 2,715 - (6,213)
Financing Activities
Issuance of long-term debt - - - -
Retirement of preferred stock of subsidiaries - - - -
Redemption of long-term debt - - - -
Change in short-term debt - - - -
Dividends on preferred stock - - - -
Dividends on common stock (20) - - 3,532
Net cash provided by (used in)
financing activities (20) - - 3,532
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) - (2,679) - 2,681
Deferred demand-side management costs - net - - - -
Net cash provided by (used in)
investing activities - (2,679) - 2,681
Net increase (decrease) in cash and
temporary cash investments (2) 36 - -
Cash and temporary cash investments at
beginning of period 30 56 - -
Cash and temporary cash investments at
end of period $28 $92 - -
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
The Cincinnati Gas
& Electric Company
<S> <C>
Operating Activities
Net income $236,201
Items providing (using) cash currently:
Depreciation 158,986
Deferred income taxes and investment tax
credits - net 26,938
Allowance for equity funds used during
construction (1,790)
Regulatory assets - net 16,654
Changes in current assets and current
liabilities
Restricted deposits (1,046)
Accounts receivable - net (44,882)
Materials, supplies, and fuel 14,039
Accounts payable 13,182
Accrued taxes and interest 21,935
Other items - net 631
Net cash provided by (used in)
operating activities 440,848
Financing Activities
Issuance of long-term debt 344,280
Retirement of preferred stock of subsidiaries (93,450)
Redemption of long-term debt (338,378)
Change in short-term debt (14,500)
Dividends on preferred stock (17,673)
Dividends on common stock (219,550)
Net cash provided by (used in)
financing activities (339,271)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (138,325)
Deferred demand-side management costs - net (9,156)
Net cash provided by (used in)
investing activities (147,481)
Net increase (decrease) in cash and
temporary cash investments (45,904)
Cash and temporary cash investments at
beginning of period 52,516
Cash and temporary cash investments at
end of period $6,612
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami
& Electric Company Power Company Gas Company Electric Company Power Corp.
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $1,532,972 $101,822 $5,036 $267 $34
Paid-in capital 1,227 - - - -
Retained earnings
Net income 236,201 12,172 609 24 2
Dividends on preferred stock (17,673) - - - -
Dividends on common stock (219,550) (3,512) - - (20)
Other (4,714) - - - -
BALANCE AT DECEMBER 31, 1995 $1,528,463 $110,482 $5,645 $291 $16
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Consolidated
Tri-State KO The Cincinnati Gas
Improvement Co. Transmission Co. Eliminations & Electric Company
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 ($80) - ($107,079) $1,532,972
Paid-in capital - - - 1,227
Retained earnings
Net income 159 - (12,966) 236,201
Dividends on preferred stock - - - (17,673)
Dividends on common stock - - 3,532 (219,550)
Other - - - (4,714)
BALANCE AT DECEMBER 31, 1995 $79 - ($116,513) $1,528,463
</TABLE>
<TABLE>
<CAPTION>
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Power Consolidated
Cinergy Equipment Wholesale Power PSI PSI
Investments, Inc. Supply Co. Services, Inc. Recycling, Inc Argentina, Inc.
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES $53 $5,012 $209 $4,778 $462
OPERATING EXPENSES
Other operation 2,488 5,377 1,192 3,993 677
Income taxes (947) (957) (433) 281 577
Taxes other than income taxes 79 158 30 35 167
1,620 4,578 789 4,309 1,421
OPERATING INCOME (LOSS) (1,567) 434 (580) 469 (959)
OTHER INCOME AND EXPENSES - NET
Income taxes 1 1,426 - - (3,797)
Equity in earnings of subsidiaries 1,898 - - - -
Other - net (53) (3,735) (80) (8) 11,929
1,846 (2,309) (80) (8) 8,132
INCOME (LOSS) BEFORE INTEREST 279 (1,875) (660) 461 7,173
INTEREST
Other interest 142 2 48 1 13
142 2 48 1 13
NET INCOME (LOSS) $137 ($1,877) ($708) $460 $7,160
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp., which
did not have any activity for 1995.
2/ See accompanying consolidating
statements of income (loss).
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Power Cinergy Cinergy
International, Inc.2/ Resources, Inc. CGE ECK, Inc. Technology, Inc.
<S> <C> <C> <C> <C>
OPERATING REVENUES - - - -
OPERATING EXPENSES
Other operation - - - -
Income taxes - - - -
Taxes other than income taxes - - - -
- - - -
OPERATING INCOME (LOSS) - - - -
OTHER INCOME AND EXPENSES - NET
Income taxes 1,522 150 24 -
Equity in earnings of subsidiaries - - - -
Other - net (3,405) (359) (27) -
(1,883) (209) (3) -
INCOME (LOSS) BEFORE INTEREST (1,883) (209) (3) -
INTEREST
Other interest 944 57 41 -
944 57 41 -
NET INCOME (LOSS) ($2,827) ($266) ($44) -
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp., which
did not have any activity for 1995.
2/ See accompanying consolidating
statements of income (loss).
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy
Eliminations Investments, Inc. 3/
<S> <C> <C>
OPERATING REVENUES - $10,514
OPERATING EXPENSES
Other operation - 13,727
Income taxes - (1,479)
Taxes other than income taxes - 469
- 12,717
OPERATING INCOME (LOSS) - (2,203)
OTHER INCOME AND EXPENSES - NET
Income taxes - (674)
Equity in earnings of subsidiaries (1,898) -
Other - net - 4,262
(1,898) 3,588
INCOME (LOSS) BEFORE INTEREST (1,898) 1,385
INTEREST
Other interest - 1,248
- 1,248
NET INCOME (LOSS) ($1,898) $137
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp., which
did not have any activity for 1995.
2/ See accompanying consolidating
statements of income (loss).
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY INVESTMENTS, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Power
Cinergy Equipment Wholesale Power PSI
Investments, Inc. Supply Co. Services, Inc. Recycling, Inc.
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and temporary cash investments - - - -
Restricted deposits - - - -
Accounts receivable - net 44 212 27 565
Accounts receivable from affiliated companies - 3,155 - 362
Materials and supplies - - - 226
Prepayments and other - - 338 24
44 3,367 365 1,177
OTHER ASSETS
Investment in subsidiaries 13,594 - - -
Other 8 - - 951
13,602 - - 951
$13,646 $3,367 $365 $2,128
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock of subsidiaries - - - -
Paid-in capital 24,418 4,563 985 1,434
Retained earnings (deficit) (12,971) 103 (1,470) 436
Total common stock equity 11,447 4,666 (485) 1,870
LONG-TERM DEBT - - - -
Total capitalization 11,447 4,666 (485) 1,870
CURRENT LIABILITIES
Accounts payable 337 402 17 69
Accounts payable to affiliated companies 1,777 25 756 22
Accrued taxes 144 (21) 72 (7)
Other - - - -
2,258 406 845 84
OTHER LIABILITIES
Deferred income taxes (60) (1,703) (25) 174
Other 1 (2) 30 -
(59) (1,705) 5 174
$13,646 $3,367 $365 $2,128
<FN>
1/ See accompanying consolidating balance sheets.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated Consolidated
PSI Power Cinergy
Argentina, Inc. International, Inc. Resources, Inc. CGE ECK, Inc.
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and temporary cash investments - $10,673 $1,653 -
Restricted deposits - - 5 -
Accounts receivable - net 207 295 3,886 -
Accounts receivable from affiliated companies 17,020 - - -
Materials and supplies - - - -
Prepayments and other 179 - - -
17,406 10,968 5,544 -
OTHER ASSETS
Investment in subsidiaries - - - -
Other (39) (7,774) 70 -
(39) (7,774) 70 -
$17,367 $3,194 $5,614 -
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock of subsidiaries - $50 - -
Paid-in capital 9,587 - - -
Retained earnings (deficit) 7,223 (8,155) (687) (475)
Total common stock equity 16,810 (8,105) (687) (475)
LONG-TERM DEBT - - - -
Total capitalization 16,810 (8,105) (687) (475)
CURRENT LIABILITIES
Accounts payable 66 - 2,863 -
Accounts payable to affiliated companies 124 13,353 3,412 684
Accrued taxes 57 904 8 (209)
Other - 750 43 -
247 15,007 6,326 475
OTHER LIABILITIES
Deferred income taxes 134 (4,103) (25) -
Other 176 395 - -
310 (3,708) (25) -
$17,367 $3,194 $5,614 -
<FN>
1/ See accompanying consolidating balance sheets.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy Cinergy
Technology, Inc. Eliminations Investments, Inc. 2/
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and temporary cash investments - - $12,326
Restricted deposits - - 5
Accounts receivable - net - - 5,236
Accounts receivable from affiliated companies - - 20,537
Materials and supplies - - 226
Prepayments and other - - 541
- - 38,871
OTHER ASSETS
Investment in subsidiaries - (13,594) -
Other - - (6,784)
- (13,594) (6,784)
- ($13,594) $32,087
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock of subsidiaries - ($50) -
Paid-in capital - (16,569) 24,418
Retained earnings (deficit) - 3,025 (12,971)
Total common stock equity (13,594) 11,447
LONG-TERM DEBT - - -
Total capitalization (13,594) 11,447
CURRENT LIABILITIES
Accounts payable - - 3,754
Accounts payable to affiliated companies - - 20,153
Accrued taxes - - 948
Other - - 793
- - 25,648
OTHER LIABILITIES
Deferred income taxes - - (5,608)
Other - - 600
- - (5,008)
- ($13,594) $32,087
<FN>
1/ See accompanying consolidating balance sheets.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Power
Cinergy Equipment Wholesale Power PSI
Investments, Inc. Supply Co. Services, Inc. Recycling, Inc.
<S> <C> <C> <C> <C>
Operating Activities
Net income (loss) $137 ($1,877) ($708) $460
Items providing (using) cash currently:
Deferred income taxes and investment tax
credits - net - (1,603) (1) 65
Changes in current assets and current
liabilities
Restricted deposits - - - -
Accounts receivable - net - (2,139) (50) (474)
Materials, supplies, and fuel - 5,451 - (24)
Accounts payable 1,587 (47) 578 (88)
Accrued taxes and interest 149 (29) 73 (5)
Other items - net (1,876) 244 108 61
Net cash provided by (used in)
operating activities (3) - - (5)
Investing Activities
Equity investment in Argentine utility - - - -
Net cash provided by (used in) - - - -
investing activities
Net increase (decrease) in cash and
temporary cash investments (3) - - (5)
Cash and temporary cash investments at
beginning of period 3 - - 5
Cash and temporary cash investments at
end of period - - - -
<FN>
1/ See accompanying consolidating statements
of cash flows.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated Consolidated
PSI Power Cinergy
Argentina, Inc. International 1/ Resources, Inc. CGE ECK, Inc.
<S> <C> <C> <C> <C>
Operating Activities
Net income (loss) $7,160 ($2,827) ($266) ($44)
Items providing (using) cash currently:
Deferred income taxes and investment tax
credits - net - (2,204) 15 -
Changes in current assets and current
liabilities
Restricted deposits - - (5) -
Accounts receivable - net (17,105) (196) (3,886) -
Materials, supplies, and fuel - - - -
Accounts payable (12) 7,074 5,539 33
Accrued taxes and interest 50 1,066 33 5
Other items - net 121 6,186 218 -
Net cash provided by (used in)
operating activities (9,786) 9,099 1,648 (6)
Investing Activities
Equity investment in Argentine utility 9,786 - - -
Net cash provided by (used in) 9,786 - - -
investing activities
Net increase (decrease) in cash and
temporary cash investments - 9,099 1,648 (6)
Cash and temporary cash investments at
beginning of period - 1,574 5 6
Cash and temporary cash investments at
end of period - $10,673 $1,653 -
<FN>
1/ See accompanying consolidating statements
of cash flows.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Cinergy Cinergy
Technology, Inc. Eliminations Investments, Inc. 2/
<S> <C> <C> <C>
Operating Activities
Net income (loss) - ($1,898) $137
Items providing (using) cash currently:
Deferred income taxes and investment tax
credits - net - - (3,728)
Changes in current assets and current
liabilities
Restricted deposits - - (5)
Accounts receivable - net - - (23,850)
Materials, supplies, and fuel - - 5,427
Accounts payable - - 14,664
Accrued taxes and interest - - 1,342
Other items - net - 1,898 6,960
Net cash provided by (used in)
operating activities - - 947
Investing Activities
Equity investment in Argentine utility - - 9,786
Net cash provided by (used in) - - 9,786
investing activities
Net increase (decrease) in cash and
temporary cash investments - - 10,733
Cash and temporary cash investments at
beginning of period - - 1,593
Cash and temporary cash investments at
end of period - - $12,326
<FN>
1/ See accompanying consolidating statements
of cash flows.
2/ PSI T&D International, Inc. is the parent
company of PSI Yacyreta, Inc., neither of
which had any activity for 1995
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY INVESTMENTS
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Power Consolidated
Cinergy Equipment Wholesale Power PSI PSI
Investments, Inc. Supply Co. Services, Inc. Recycling, Inc. Argentina, Inc. 1/
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $11,310 $6,543 $223 $1,410 $9,650
Retained earnings (deficit)
Net income (loss) 137 (1,877) (708) 460 7,160
BALANCE AT DECEMBER 31, 1995 $11,447 $4,666 ($485) $1,870 $16,810
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp.,
which did not have any activity for
1995.
2/ See accompanying consolidating
statements of changes in common stock
equity.
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Consolidated
Power Cinergy Cinergy
International, Inc. Resources, Inc. CGE ECK, Inc. Technology, Inc. Eliminations
<S> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 ($5,278) ($421) ($431) - ($11,696)
Retained earnings (deficit)
Net income (loss) (2,827) (266) (44) - (1,898)
BALANCE AT DECEMBER 31, 1995 ($8,105) ($687) ($475) - ($13,594)
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp.,
which did not have any activity for
1995.
2/ See accompanying consolidating
statements of changes in common stock
equity.
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
CINERGY INVESTMENTS
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Consolidated
Cinergy
Investments, Inc.3/
<S> <C>
BALANCE AT DECEMBER 31, 1994 $11,310
Retained earnings (deficit)
Net income (loss) 137
BALANCE AT DECEMBER 31, 1995 $11,447
<FN>
1/ PSI Argentina, Inc. is the parent
company of Costanera Power Corp.,
which did not have any activity for
1995.
2/ See accompanying consolidating
statements of changes in common stock
equity.
3/ PSI T&D International, Inc. is the
parent company of PSI Yacyreta, Inc.,
neither of which had any activity for
1995.
</TABLE>
<TABLE>
<CAPTION>
POWER INTERNATIONAL, INC.
CONSOLIDATING STATEMENT OF LOSS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Beheer-En Consolidated
Power Belegginsmaatschappij Power
International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc.
<S> <C> <C> <C> <C>
OTHER INCOME AND EXPENSES - NET
Income taxes $1,522 $3 ($3) $1,522
Revenues - Sales services 9,008 1,824 (1,824) 9,008
Other revenue - 21 (21) -
Wage and salary expense - (1,321) 1,321 -
Other operating expense (6,113) (2,363) 2,363 (6,113)
Depreciation expense - (79) 79 -
Write-off of cash advances (6,300) - - (6,300)
Other nonoperating expense - (40) 40 -
(1,883) (1,955) 1,955 (1,883)
LOSS BEFORE INTEREST (1,883) (1,955) 1,955 (1,883)
INTEREST
Other interest 944 121 (121) 944
944 121 (121) 944
NET LOSS ($2,827) ($2,076) $2,076 ($2,827)
<FN>
1/ See accompanying consolidating statement of loss.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
POWER INTERNATIONAL, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(dollars in thousands)
Consolidated
Beheer-En Consolidated
Power Belegginsmaatschappij Power
International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc.
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and temporary cash investments $10,673 $339 ($339) $10,673
Accounts receivable - net 295 546 (546) 295
Prepayments and other - 100 (100) -
Other - 253 (253)
10,968 1,238 (1,238) 10,968
OTHER ASSETS
Property and investments - net (7,774) 1,006 (1,006) (7,774)
$3,194 $2,244 ($2,244) $3,194
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $500 stated value; authorized shares -
750; outstanding shares - 100 $50 - - $50
Common stock of subsidiaries - 24 (24) -
Paid-in capital - 1,001 (1,001) -
Retained deficit (8,155) (2,291) 2,291 (8,155)
Total common stock equity (8,105) (1,266) 1,266 (8,105)
CURRENT LIABILITIES
Accounts payable to affiliated companies - net 13,353 500 (500) 13,353
Accrued taxes 904 6 (6) 904
Other 750 78 (78) 750
15,007 584 (584) 15,007
OTHER LIABILITIES (3,708) 2,926 (2,926) (3,708)
$3,194 $2,244 ($2,244) $3,194
<FN>
1/ See accompanying consolidating balance sheets.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
POWER INTERNATIONAL, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Beheer-En Consolidated
Power Belegginsmaatschappij Power
International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc.
<S> <C> <C> <C> <C>
Operating Activities
Net income (loss) ($2,827) ($2,076) $2,076 ($2,827)
Items providing (using) cash currently:
Changes in current assets and current
liabilities:
Accounts receivable - net (196) 313 (313) (196)
Accounts payable 7,074 2,188 (2,188) 7,074
Prepaid expenses - 25 (25) -
Other items - net 5,048 (1,160) 1,160 5,048
Net cash provided by (used in)
operating activities 9,099 (710) 710 9,099
Investing Activities
Additional paid-in capital - 950 (950) -
- 950 (950) -
Net increase (decrease) in cash and
temporary cash investments 9,099 240 (240) 9,099
Cash and temporary cash investments at
beginning of period 1,574 99 (99) 1,574
Cash and temporary cash investments at
end of period $10,673 $339 ($339) $10,673
<FN>
1/ See accompanying consolidating statements of cash flows.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
POWER INTERNATIONAL, INC.
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Consolidated
Beheer-En Consolidated
Power Belegginsmaatschappij Power
International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc.
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 ($5,278) ($39) $39 ($5,278)
Common stock
Paid in capital - 950 (950) -
Retained deficit
Net loss (2,827) (2,076) 2,076 (2,827)
Other - (101) 101 -
BALANCE AT DECEMBER 31, 1995 ($8,105) ($1,266) $1,266 ($8,105)
<FN>
1/ See accompanying consolidating statement of changes in common stock equity.
</TABLE>
<TABLE>
<CAPTION>
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V.
CONSOLIDATING STATEMENT OF LOSS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Beheer-En
Belegginsmaatschappij Power Power
Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations
<S> <C> <C> <C> <C>
OTHER INCOME AND EXPENSES - NET
Income taxes $3 - - -
Revenues - Sales services - 137 1,687 -
Other revenue - 24 8 (11)
Wage and salary expense (891) (301) (129) -
Other operating expense (38) (671) (1,665) 11
Other nonoperating expense - (32) (8) -
Equity in earnings of
subsidiary (1,150) - - 1,150
Depreciation expense - (55) (24) -
(2,076) (898) (131) 1,150
LOSS BEFORE INTEREST (2,076) (898) (131) 1,150
INTEREST
Other interest - - 121 -
NET LOSS ($2,076) ($898) ($252) $1,150
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V.
CONSOLIDATING STATEMENT OF LOSS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Beheer-En
Belegginsmaatschappij
Bruwabel B.V.
<S> <C>
OTHER INCOME AND EXPENSES - NET
Income taxes $3
Revenues - Sales services 1,824
Other revenue 21
Wage and salary expense (1,321)
Other operating expense (2,363)
Other nonoperating expense (40)
Equity in earnings of
subsidiary -
Depreciation expense (79)
(1,955)
LOSS BEFORE INTEREST (1,955)
INTEREST
Other interest 121
NET LOSS ($2,076)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(dollars in thousands)
Beheer-En
Belegginsmaatschappij Power Power
Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations
<S> <C> <C> <C> <C>
CURRENT ASSETS
Cash and temporary cash investments $19 $143 $177 -
Accounts receivable - net 3 166 377 -
Prepayments - 100 - -
Other 42 12 199 -
64 421 753 -
OTHER ASSETS
Investment in subsidiaries (1,313) - - 1,313
Property and investments - net - 87 919 -
Other 12 - (12)
(1,301) 87 919 1,301
($1,237) $508 $1,672 $1,301
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - 125 Dutch Guilders stated value; authorized
shares - 400; outstanding shares - 321 $24 - - -
Equity in subsidiaries - 3 9 (12)
Paid-in capital 1,001 1 - (1)
Retained deficit (2,291) (952) (362) 1,314
Total common stock equity (1,266) (948) (353) 1,301
CURRENT LIABILITIES
Accounts payable - 17 483 -
Accrued taxes - 2 4 -
Other 29 24 25 -
29 43 512 -
OTHER LIABILITIES - 1,413 1,513 -
($1,237) $508 $1,672 $1,301
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(dollars in thousands)
Consolidated
Beheer-En
Belegginsmaatschappij
Bruwabel B.V.
<S> <C>
CURRENT ASSETS
Cash and temporary cash investments $339
Accounts receivable - net 546
Prepayments 100
Other 253
1,238
OTHER ASSETS
Investment in subsidiaries -
Property and investments - net 1,006
Other -
1,006
$2,244
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - 125 Dutch Guilders stated value;
shares - 400; outstanding shares - 321 $24
Equity in subsidiaries -
Paid-in capital 1,001
Retained deficit (2,291)
Total common stock equity (1,266)
CURRENT LIABILITIES
Accounts payable 500
Accrued taxes 6
Other 78
584
OTHER LIABILITIES 2,926
$2,244
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BEHEER-EN BELEGINSMAATSCHAPIJ BRUWABEL B.V.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Beheer-En
Belegginsmaatschappij Power Power
Bruwabel B.V. International s.r.o Development s.r.o. Eliminations
<S> <C> <C> <C> <C>
Operating Activities
Net income (loss) ($2,076) ($898) ($252) $1,150
Items providing (using) cash currently:
Depreciation expense - 55 24 -
Changes in current assets and current
liabilities:
Accounts receivable - net (2) 681 (366) -
Accounts payable 5 300 1,883 -
Prepaid expenses - 31 (6) -
Other items - net (16) (112) (1,111) -
Net cash provided by (used in)
operating activities (2,089) 57 172 1,150
Investing Activities
Investment in subsidiaries (1,263) - - 1,263
Additional paid-in capital 950 - - -
Other 2,413 - - (2,413)
Net cash provided by (used in)
investing activities 2,100 - - (1,150)
Net increase (decrease) in cash and
temporary cash investments 11 57 172 -
Cash and temporary cash investments at
beginning of period 8 86 5 -
Cash and temporary cash investments at
end of period $19 $143 $177 -
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
BEHEER-EN BELEGINSMAATSCHAPIJ BRUWABEL B.V.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
Beheer-En
Belegginsmaatschappij
Bruwabel B.V.
<S> <C>
Operating Activities
Net income (loss) ($2,076)
Items providing (using) cash currently:
Depreciation expense 79
Changes in current assets and current
liabilities:
Accounts receivable - net 313
Accounts payable 2,188
Prepaid expenses 25
Other items - net (1,239)
Net cash provided by (used in)
operating activities (710)
Investing Activities
Investment in subsidiaries -
Additional paid-in capital 950
Other -
Net cash provided by (used in)
investing activities 950
Net increase (decrease) in cash and
temporary cash investments 240
Cash and temporary cash investments at
beginning of period 99
Cash and temporary cash investments at
end of period $339
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL, B.V.
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Beheer-En
Belegginsmaatschappij Power Power
Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 ($39) ($47) $4 $43
Equity of subsidiaries - - - -
Paid in capital 950 1 - (1)
Retained deficit
Net loss (2,076) (898) (252) 1,150
Other (101) (4) (105) 109
BALANCE AT DECEMBER 31, 1995 ($1,266) ($948) ($353) $1,301
</TABLE>
<TABLE>
<CAPTION>
(CONTINUED)
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL, B.V.
CONSOLIDATING STATEMENT OF CHANGES
IN COMMON STOCK EQUITY
(in thousands)
Consolidated
Beheer-En
Belegginsmaatschappij
Bruwabel B.V.
<S> <C>
BALANCE AT DECEMBER 31, 1994 ($39)
Equity of subsidiaries -
Paid in capital 950
Retained deficit
Net loss (2,076)
Other (101)
BALANCE AT DECEMBER 31, 1995 ($1,266)
</TABLE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
PSI Energy Consolidated
PSI Energy, Inc. Argentina, Inc. Eliminations PSI Energy, Inc.
<S> <C> <C> <C> <C>
ASSETS
ELECTRIC UTILITY PLANT - ORIGINAL COST
In service $4,052,984 - - $4,052,984
Accumulated depreciation 1,637,169 - - 1,637,169
2,415,815 - - 2,415,815
Construction work in progress 58,191 - - 58,191
Total electric utility plant 2,474,006 - - 2,474,006
CURRENT ASSETS
Cash and temporary cash investments 15,522 - - 15,522
Restricted deposits 1,187 - - 1,187
Accounts receivable - net 73,419 - - 73,419
Accounts receivable from affiliated companies 20,568 - - 20,568
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 82,014 - - 82,014
Other materials and supplies 29,462 - - 29,462
Prepayments and other 1,234 - - 1,234
223,406 - - 223,406
OTHER ASSETS
Regulatory assets
Post-in-service carrying costs and deferred 38,874 - - 38,874
Deferred demand-side management costs 110,242 - - 110,242
Amounts due from customers - income taxes 26,338 - - 26,338
Deferred merger costs 42,286 - - 42,286
Unamortized costs of reacquiring debt 34,476 - - 34,476
Other 33,886 - - 33,886
Investment in subsidiary 10,705 (10,705) -
Other 81,351 10,705 - 92,056
378,158 10,705 (10,705) 378,158
$3,075,570 $10,705 ($10,705) $3,075,570
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $.01 stated value; authorized shares -
60,000,000; outstanding shares - 53,913,701 $539 - - $539
Paid-in capital 403,253 10,705 (10,705) 403,253
Accumulated earnings subsequent to November 30, 1986
reorganization 625,275 - - 625,275
Total common stock equity 1,029,067 10,705 (10,705) 1,029,067
CUMULATIVE PREFERRED STOCK - NOT
SUBJECT TO MANDATORY REDEMPTION 187,897 - - 187,897
LONG-TERM DEBT 828,116 - - 828,116
Total capitalization 2,045,080 10,705 (10,705) 2,045,080
CURRENT LIABILITIES
Long-term debt due within one year 50,400 - - 50,400
Notes payable 198,531 - - 198,531
Accounts payable 116,817 - - 116,817
Litigation settlement 80,000 - - 80,000
Accrued taxes 65,851 - - 65,851
Accrued interest 24,696 - - 24,696
Other 16,000 - - 16,000
552,295 - - 552,295
OTHER LIABILITIES
Deferred income taxes 331,876 - - 331,876
Unamortized investment tax credits 56,354 - - 56,354
Accrued pension and other postretirement benefi 54,130 - - 54,130
Other 35,835 - - 35,835
478,195 - - 478,195
$3,075,570 $10,705 ($10,705) $3,075,570
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY
(in thousands)
Consolidated
PSI PSI Energy PSI
Energy, Inc. Argentina, Inc. Eliminations Energy, Inc.
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994 $882,951 - - $882,951
Paid in capital 18 10,705 (10,705) 18
Capital contribution from parent
company 13,926 13,926
Retained earnings
Net income 145,815 - - 145,815
Dividends on preferred stock (13,181) - - (13,181)
Other (462) - - (462)
BALANCE AT DECEMBER 31, 1995 $1,029,067 $10,705 ($10,705) $1,029,067
</TABLE>
<TABLE>
<CAPTION>
PSI ARGENTINA, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1995
(in thousands)
Consolidated
PSI Costanera PSI
Argentina, Inc. Power Corp. Eliminations Argentina, Inc.
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Accounts receivable - net $207 - - $207
Accounts receivable from affiliated companies 17,020 - - 17,020
Prepayments and other 179 - - 179
17,406 - - 17,406
OTHER ASSETS
Other (39) - - (39)
$17,367 - - $17,367
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Paid-in capital $9,587 - - $9,587
Retained earnings 7,223 - - 7,223
Total common stock equity 16,810 - - 16,810
CURRENT LIABILITIES
Accounts payable 66 - - 66
Accounts payable to affiliated companies 124 - - 124
Accrued taxes 57 - - 57
247 - - 247
OTHER LIABILITIES
Deferred income taxes 134 - - 134
Other 176 - - 176
310 - - 310
$17,367 - - $17,367
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ARGENTINA, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1995
(in thousands)
Consolidated
PSI Costanera PSI
Argentina, Inc. Power Corp. Eliminations Argentina, Inc.
<S> <C> <C> <C> <C>
Operating Activities
Net income $7,160 - - $7,160
Items providing (using) cash currently:
Changes in current assets and current
liabilities
Accounts receivable - net (17,105) - - (17,105)
Accounts payable (12) - - (12)
Accrued taxes and interest 50 - - 50
Other items - net 121 (9,786) 9,786 121
Net cash provided by (used in)
operating activities (9,786) (9,786) 9,786 (9,786)
Investing Activities
Equity investment in Argentine utility 9,786 9,786 (9,786) 9,786
Net cash provided by (used in) 9,786 9,786 (9,786) 9,786
investing activities
Net increase (decrease) in cash and
temporary cash investments - - - -
Cash and temporary cash investments at
beginning of period - - - -
Cash and temporary cash investments at
end of period - - - -
</TABLE>
ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND
SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES
(a) Directors' and Executive Officers' Compensation
PSI (including subsidiaries)
William J. Grealis is also an officer of PSI Energy Argentina. See Cinergy's
disclosure on pages 12 through 23 of the Proxy Statement for the required
information regarding Mr. Grealis' compensation.
(b) Security Ownership of Certain Beneficial Owners and Management
Cinergy (including Investments and subsidiaries)
The beneficial ownership of Cinergy's common stock held by each nominee,
continuing director, and named executive officer, including those of
Investments and subsidiaries (as identified on pages 10-12 of this Annual
Report on Form U5S (U5S)) and of units equal to one share of Cinergy's common
stock paid as compensation to non-employee directors, as of December 31, 1995,
is set forth in the following table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3)
Neil A. Armstrong 3,250 shares
James K. Baker 16,105 shares 1,324
Michael G. Browning 21,335 shares 4,254
Clement L. Buenger 3,250 shares
Phillip R. Cox 2,738 shares
Kenneth M. Duberstein 15,491 shares
William J. Grealis 300 shares
John A. Hillenbrand II 30,759 shares 3,821
George C. Juilfs 6,250 shares
J. Wayne Leonard 74,060 shares
John M. Mutz 34,740 shares
Melvin Perelman 26,725 shares 3,975
Thomas E. Petry 4,500 shares
Jackson H. Randolph 75,658 shares
James E. Rogers 252,582 shares
John J. Schiff, Jr. 43,559 shares (4)
Philip R. Sharp none
Van P. Smith 19,890 shares
Dudley S. Taft 5,500 shares
Larry E. Thomas 75,640 shares
Oliver W. Waddell 6,653 shares
All directors and executive officers
as a group 912,288 shares (2)
(representing 0.58% of the class)
___________
(1) No individual listed beneficially owned more than 0.16% of the
outstanding shares of Cinergy's common stock.
(2) Includes shares which there is a right to acquire within 60 days
pursuant to the exercise of stock options in the following amounts:
Mr. Armstrong-2,500; Mr. Baker-15,287; Mr. Browning-15,287; Mr. Buenger-2,500;
Mr. Cox-2,500; Mr. Duberstein-15,287; Mr. Hillenbrand-15,287; Mr. Juilfs-
2,500; Mr. Leonard-57,611; Mr. Mutz-32,787; Mr. Perelman-15,287; Mr. Petry-
2,500; Mr. Randolph-50,000; Mr. Rogers-189,403; Mr. Schiff-2,500; Mr. Smith-
15,287; Mr. Taft-2,500; Mr. Thomas-51,107; Mr. Waddell-2,500; and all
directors and executive officers as a group-635,605.
(3) Each unit represents one share of Cinergy's common stock credited to
the account of the respective directors as of December 31, 1995, under the
Cinergy Directors' Deferred Compensation Plan.
(4) Includes 15,000 shares owned of record by a trust of which Mr. Schiff
is one of three trustees who share voting and investment power equally. Does
not include 1,486,600 shares, as to which Mr. Schiff disclaims any beneficial
interest, held by Cincinnati Financial Corporation and certain of its
subsidiaries.
CG&E (including subsidiaries)
CG&E's (and subsidiaries') directors and executive officers (as identified on
page 10 of this U5S) did not beneficially own any shares of any series of the
class of CG&E's cumulative preferred stock as of December 31, 1995. The
beneficial ownership of the outstanding shares of Cinergy's common stock held
by each director and named executive officer as of December 31, 1995, is set
forth in the following table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2)
Cheryl M. Foley 71,592 shares
William J. Grealis 300 shares
J. Wayne Leonard 74,060 shares
Jackson H. Randolph 75,658 shares
James E. Rogers 252,582 shares
Larry E. Thomas 75,640 shares
All directors and executive officers as a group 678,453 shares (2)
(representing .043%
of the class)
___________
(1) No individual listed beneficially owned more than 0.16% of the
outstanding shares of Cinergy's common stock.
(2) Includes shares which there is a right to acquire within 60 days
pursuant to the exercise of stock options in the following amounts: Ms.
Foley-57,397; Mr. Leonard-57,611; Mr. Randolph-50,000; Mr. Rogers-189,403; Mr.
Thomas-51,107; and all directors and executive officers as a group-491,093.
PSI (including subsidiaries)
PSI's (and subsidiaries') director-nominees and named executive officers (as
identified on page 11 of this U5S) did not beneficially own any shares of any
series of the class of PSI's cumulative preferred stock as of December 31,
1995. The beneficial ownership of the outstanding shares of Cinergy's common
stock held by each director-nominee and named executive officer, and of units
equal to one share of Cinergy common stock paid as compensation to non-
employee directors of Cinergy, as of December 31, 1995, is set forth in the
following table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3)
James K. Baker 16,105 shares 1,324
Michael G. Browning 21,335 shares 4,254
Cheryl M. Foley 71,592 shares
John A. Hillenbrand II 30,759 shares 3,821
J. Wayne Leonard 74,060 shares
John M. Mutz 34,740 shares
Jackson H. Randolph 75,658 shares
James E. Rogers 252,582 shares
Van P. Smith 19,890 shares
Larry E. Thomas 75,640 shares
All directors and executive officers
as a group 789,304 shares (2)
(representing 0.50% of the class)
___________
(1) No individual listed beneficially owned more than 0.16% of the
outstanding shares of Cinergy's common stock.
William J. Grealis is also an officer of PSI Energy Argentina. See
Cinergy's disclosure on page 11 of the Proxy Statement for the required
information regarding Mr. Grealis' security ownership.
(2) Includes shares which there is a right to acquire within 60 days
pursuant to the exercise of stock options in the following amounts:
Mr. Baker-15,287; Mr. Browning-15,287; Ms. Foley-57,397; Mr. Hillenbrand-
15,287; Mr. Leonard-57,611; Mr. Mutz-32,787; Mr. Randolph-50,000; Mr. Rogers-
189,403; Mr. Smith-15,287; Mr. Thomas-51,107; and all directors and executive
officers as a group-585,030.
As indicated in Note 1 above, William J. Grealis is also an officer of
PSI Energy Argentina. See Cinergy's disclosure on page 11 of the Proxy
Statement for the required information regarding Mr. Grealis' security
ownership.
(3) Each unit represents one share of Cinergy's common stock credited to
the account of the respective directors as of December 31, 1995, under
Cinergy's Directors' Deferred Compensation Plan.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 0
<NAME> CINERGY CORP. (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 6,251,148
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 786,685
<TOTAL-DEFERRED-CHARGES> 1,046,110
<OTHER-ASSETS> 136,121
<TOTAL-ASSETS> 8,220,064
<COMMON> 1,577
<CAPITAL-SURPLUS-PAID-IN> 1,597,050
<RETAINED-EARNINGS> 950,216
<TOTAL-COMMON-STOCKHOLDERS-EQ> 2,548,843
160,000
227,897
<LONG-TERM-DEBT-NET> 2,530,766
<SHORT-TERM-NOTES> 165,800
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 201,900
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,384,858
<TOT-CAPITALIZATION-AND-LIAB> 8,220,064
<GROSS-OPERATING-REVENUE> 3,031,433
<INCOME-TAX-EXPENSE> 219,462
<OTHER-OPERATING-EXPENSES> 2,229,839
<TOTAL-OPERATING-EXPENSES> 2,449,301
<OPERATING-INCOME-LOSS> 582,132
<OTHER-INCOME-NET> 22,575
<INCOME-BEFORE-INTEREST-EXPEN> 604,707
<TOTAL-INTEREST-EXPENSE> 226,672
<NET-INCOME> 378,035
30,853
<EARNINGS-AVAILABLE-FOR-COMM> 347,182
<COMMON-STOCK-DIVIDENDS> 268,851
<TOTAL-INTEREST-ON-BONDS> 213,911
<CASH-FLOW-OPERATIONS> 703,395
<EPS-PRIMARY> 2.22
<EPS-DILUTED> 2.22
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 1
<NAME> CINERGY CORP.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 0
<OTHER-PROPERTY-AND-INVEST> 2,563,727
<TOTAL-CURRENT-ASSETS> 27,547
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> (10)
<TOTAL-ASSETS> 2,591,264
<COMMON> 1,577
<CAPITAL-SURPLUS-PAID-IN> 1,597,050
<RETAINED-EARNINGS> 950,216
<TOTAL-COMMON-STOCKHOLDERS-EQ> 2,548,843
0
0
<LONG-TERM-DEBT-NET> 0
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 42,421
<TOT-CAPITALIZATION-AND-LIAB> 2,591,264
<GROSS-OPERATING-REVENUE> 0
<INCOME-TAX-EXPENSE> (488)
<OTHER-OPERATING-EXPENSES> 865
<TOTAL-OPERATING-EXPENSES> 377
<OPERATING-INCOME-LOSS> (377)
<OTHER-INCOME-NET> 349,412
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0
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
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<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
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<NAME> CINERGY SERVICES, INC.
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0
0
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0
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0
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<TABLE> <S> <C>
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
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<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 3
<NAME> PSI ENERGY, INC. (CONSOLIDATED)
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0
187,897
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13,180
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 4
<NAME> PSI ENERGY, INC.
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<TOTAL-ASSETS> 3,075,570
<COMMON> 539
<CAPITAL-SURPLUS-PAID-IN> 403,253
<RETAINED-EARNINGS> 625,275
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,029,067
0
187,897
<LONG-TERM-DEBT-NET> 828,116
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0
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<TOTAL-OPERATING-EXPENSES> 1,021,146
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13,180
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 5
<NAME> THE CINCINNATI GAS & ELECTRIC CO. (CONSOLIDATED)
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<S> <C>
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<RETAINED-EARNINGS> 427,226
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,528,463
160,000
40,000
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0
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17,673
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 6
<NAME> THE CINCINNATI GAS & ELECTRIC CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
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<TOTAL-ASSETS> 5,023,691
<COMMON> 762,136
<CAPITAL-SURPLUS-PAID-IN> 339,101
<RETAINED-EARNINGS> 427,226
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,528,463
160,000
40,000
<LONG-TERM-DEBT-NET> 1,647,072
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0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,511,656
<TOT-CAPITALIZATION-AND-LIAB> 5,023,691
<GROSS-OPERATING-REVENUE> 1,729,133
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17,673
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<EPS-PRIMARY> 0.00
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 7
<NAME> THE UNION LIGHT, HEAT AND POWER CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<BOOK-VALUE> PER-BOOK
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<TOTAL-DEFERRED-CHARGES> 6,859
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<TOTAL-ASSETS> 299,797
<COMMON> 8,780
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<RETAINED-EARNINGS> 82,863
<TOTAL-COMMON-STOCKHOLDERS-EQ> 110,482
0
0
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0
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<OTHER-ITEMS-CAPITAL-AND-LIAB> 119,938
<TOT-CAPITALIZATION-AND-LIAB> 299,797
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0
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 8
<NAME> THE WEST HARRISON GAS AND ELECTRIC CO.
<MULTIPLIER> 1,000
<S> <C>
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<PERIOD-START> JAN-01-1995
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0
0
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0
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0
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<EPS-PRIMARY> 0.00
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 9
<NAME> LAWRENCEBURG GAS CO.
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<S> <C>
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0
0
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0
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0
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<EPS-PRIMARY> 0.00
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
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</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 10
<NAME> MIAMI POWER CORP.
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<S> <C>
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0
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0
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0
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 11
<NAME> KO TRANSMISSION CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
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<PERIOD-START> JAN-01-1995
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0
0
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0
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0
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<EPS-PRIMARY> 0.00
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 12
<NAME> TRI-STATE IMPROVEMENT CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
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0
0
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 24
<NAME> CINERGY RESOURCES, INC.
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 25
<NAME> CGE ECK, INC.
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THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 26
<NAME> PSI ENERGY ARGENTINA, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
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<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
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<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 27
<NAME> PSI ARGENTINA, INC. (CONSOLIDATED)
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0
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<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 28
<NAME> PSI ARGENTINA, INC.
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0
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0
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 29
<NAME> COSTANERA POWER CORP.
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<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<CIK> 0000899652
<NAME> CINERGY CORP.
<SUBSIDIARY>
<NUMBER> 30
<NAME> CINERGY TECHNOLOGY, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
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0
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<TOTAL-OPERATING-EXPENSES> 0
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0
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REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To PSI Energy Argentina, Inc.:
We have audited the accompanying balance sheets of PSI ENERGY
ARGENTINA, INC. (an Indiana corporation) as of December 31,
1995 and 1994. 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 audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audits to obtain reasonable assurance about
whether the balance sheets are free of material misstatement.
An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the balance
sheets. An audit also includes assessing the accounting
principles used and significant estimates made by management,
as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
In our opinion, the balance sheets referred to above
present fairly, in all material respects, the financial
position of PSI Energy Argentina, Inc. as of December 31,
1995 and 1994, in conformity with generally accepted
accounting principles.
ARTHUR ANDERSEN LLP
Indianapolis, Indiana,
April 19, 1996.
<PAGE>
PSI ENERGY ARGENTINA, INC.
BALANCE SHEETS
(dollars in thousands)
December 31,
1995 1994
ASSETS
OTHER ASSETS
Investment in Distrile $10,705 $10,705
$10,705 $10,705
CAPITALIZATION
COMMON STOCK EQUITY
Common Stock - no par value;
authorized shares - 100,000,000;
outstanding shares - $ - $ -
Paid-in capital 10,705 10,705
$10,705 $10,705
The accompanying notes are an integral part of these financial statements.
<PAGE>
PSI ENERGY ARGENTINA, INC.
NOTES TO THE FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
(a) Nature of Operations PSI Energy Argentina, Inc. (PSI Energy Argentina or
Company) is a foreign utility company under the Public Utility Holding Company
Act of 1935 (PUHCA). PSI Energy Argentina is an Indiana corporation that was
formed to invest in foreign utility companies. The Company and its parent,
PSI Energy, Inc. (PSI), an Indiana electric utility, are subsidiaries of
Cinergy Corp. (Cinergy), a registered holding company under the PUHCA.
As of December 31, 1995, PSI Energy Argentina holds an 8% interest in
Distrilec Invesora, S.A. (Distrilec). Distrilec, as a member of a
multinational consortium, owns a 51% interest in Empresa Distribuidora Sur
S.A. (Edesur), an electric distribution network serving the southern half of
the city of Buenos Aires, Argentina.
Distrilec acquired its 51% interest in connection with the privatization
of electric generation and distribution assets in Argentina. Pursuant to the
privatization process, the Argentine government retained 39% of the shares for
subsequent sale and distributed 10% of the shares to Edesur employees. In
late 1995, the Argentine government sold its remaining 39% ownership interest
at book value, which approximates the cost that Distrilec paid for its
interest in Edesur.
The Argentine government has placed a five-year restriction on the sale
of Edesur stock, requiring the Company to hold its investment until at least
September 1, 1997, unless special approval is obtained from the Argentine
government.
(b) Basis of Accounting PSI Energy Argentina uses the cost method to account
for its investment in Distrilec. Currently, the shares of Edesur are not
publicly traded.
(c) Management's Use of Estimates The preparation of financial statements in
conformity with generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported amounts of assets
and liabilities. Estimates are also required with respect to the disclosure
of contingent assets and liabilities at the date of the financial statements
and reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates. (See Note 2.)
(d) Income Taxes PSI Energy Argentina complies with the provisions of
Statements of Financial Accounting Standards No. 109, Accounting for Income
Taxes (Statement 109). Statement 109 requires recognition of deferred tax
assets and liabilities for the expected future tax consequences of existing
differences between the financial reporting and tax reporting bases of assets
and liabilities. PSI Energy Argentina had no deferred tax assets or
liabilities at year-end.
PSI Energy Argentina calculates its tax liability on a stand-alone basis.
For the year ended 1995, the Company had no stand-alone taxable income.
PSI Energy Argentina will participate in the filing of a consolidated
Federal income tax return with PSI's parent holding company, Cinergy, and
other affiliated companies for the year ended December 31, 1995. The current
tax liability is allocated among the members of the group pursuant to a tax
sharing agreement consistent with Rule 45(c) of the PUHCA.
(e) Revenues and Expenses For the year ended December 31, 1995, PSI Energy
Argentina did not earn any revenues, incur any expenses, or sustain any
impairment of its investment in Distrilec; therefore, the Statements of
Income, Cash Flows, and Changes in Common Stock Equity are not applicable.
The Company receives certain administrative, management, and support services
from affiliate companies. These services are immaterial and are therefore not
reflected in the financial statements. However, in 1996, PSI Energy Argentina
expects to earn revenues in connection with an agreement to provide consulting
and engineering services to Edesur and fees earned as a co-operator of the
distribution network.
2. Commitments
PSI Energy Argentina is committed to invest up to $12 million in
Distrilec. The Company does not anticipate making any future cash payments
but could incur a liability to invest an additional $2 million in the event
that the operations of Distrilec require additional capital.
