SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1997
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. Page
1 SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31,
1997
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, principal business address, and positions
held as of December 31, 1997
Part II. Financial connections as of December 31, 1997
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
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<TABLE>
<CAPTION>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1997
<S> <C> <C> <C> <C> <C>
Number of
Common % of Issuer's Owner's
Shares Voting Book Book Unsecured
Name of Company Owned Power Value Value Debt
(Indentation indicates subsidiary relationship) (dollars in thousands)
Cinergy Corp. (Cinergy)
The Cincinnati Gas & Electric Company (CG&E) 89,663,086 100 $1,610,588 $1,610,588 -
The Union Light, Heat and Power Company (ULH&P) 585,333 100 122,913 122,913 -
Tri-State Improvement Company (Tri-State) 1,000 100 33,860 934 $32,926
Lawrenceburg Gas Company (Lawrenceburg) 10,768 100 6,807 6,807 -
The West Harrison Gas and Electric Company
(West Harrison) 2,000 100 347 347 -
Miami Power Corporation (Miami) 1,000 100 4 4 -
KO Transmission Company (KO Transmission) 10 100 470 470 -
PSI Energy, Inc. (PSI)(1) 53,913,701 100 1,037,660 1,037,660 -
PSI Energy Argentina, Inc. (PSI Energy Argentina) 100 100 11,999 11,999 -
South Construction Company, Inc. (South
Construction) 10 100 - - -
Cinergy Investments, Inc. (Investments) 100 100 412,586 412,586 -
Cinergy-Cadence, Inc.(2) 100 100 (932) (932) -
Cadence Network LLC (Cadence)(3) NA 33 1,394 1,394 -
Cinergy Capital & Trading, Inc. (Capital &
Trading)(4) 100 100 7,871 7,871 -
CinCap IV, LLC* (CinCap)(5) NA 100 - - -
Cinergy Communications, Inc. (Communications) 100 100 605 605 -
Cinergy Engineering, Inc. (Engineering)(6) 100 100 (15) (15) -
Cinergy International, Inc.*(7) 100 100 - - -
Cinergy Global Power, Inc. (Cinergy Global)(8) 100 100 (1,570) (1,570) -
Cinergy MPI I, Inc.*(9) 100 100 - - -
Cinergy MPI II, Inc.*(9) 100 100 - - -
Cinergy MPI III, Inc.*(9) 100 100 - - -
Cinergy MPI IV, Inc.*(9) 100 100 - - -
Cinergy MPI V, Inc.*(9) 100 100 - - -
Cinergy MPI VI, Inc.*(9) 100 100 - - -
Cinergy MPI VII, Inc.*(9) 100 100 - - -
Cinergy MPI VIII, Inc.*(9) 100 100 - - -
Cinergy MPI IX, Inc.*(9) 100 100 - - -
Cinergy MPI X, Inc.*(9) 100 100 - - -
Cinergy MPI XI, Inc.*(9) 100 100 - - -
Cinergy MPI XII, Inc.*(9) 100 100 - - -
Cinergy MPI XIII, Inc.*(9) 100 100 - - -
Cinergy MPI XIV, Inc.*(9) 100 100 - - -
Cinergy MPI XV, Inc.*(9) 100 100 - - -
MPII (Zambia) B.V. (MPII/Z)(10) 4,525 100 28,780 28,780 -
Copperbelt Energy Corporation plc
(Copperbelt)(10) 3,900,000 39 61,853 61,853 -
MPI International Limited (MPI
International)(8) 1,000 100 1 1 -
Cinergy Resources, Inc. (Cinergy Resources)(14) 10 100 (2,318) (2,318) -
</TABLE>
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<TABLE>
<CAPTION>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1997 (Continued)
<S> <C> <C> <C> <C>
Cinergy Solutions, Inc.(Solutions)(11) 100 100 (1,953) (1,953) -
Trigen-Cinergy Solutions LLC (Trigen-Cinergy)(11) NA 50 1,061 1,061 -
Trigen-Cinergy Solutions of Cincinnati LLC
(Trigen-Cinergy Cincinnati)(12) NA 51 411 411 -
Trigen-Cinergy Solutions of Illinois L.L.C.
(Trigen-Cinergy Illinois)(13) NA 49 - - -
Cinergy Technology, Inc. (Technology) 100 100 (49) (49) -
Cinergy UK, Inc. (Cinergy UK) 1,000 100 421,942 421,942 -
Avon Energy Partners Holdings (Avon Energy) 330,000,000 50 1,000,571 1,000,571 -
Avon Energy Partners PLC 1,701,513,216 100 2,338,940 2,338,940 -
Midlands Electricity plc (Midlands) 496,655,789 100 2,370,733 2,370,733 -
Enertech Associates, Inc. (Enertech) 100 100 (14,764) (14,765) -
PSI Argentina, Inc. (Argentina)* 100 100 18,422 18,422 -
Costanera Power Corp. (Costanera)* 100 100 - - -
PSI Power Resource Development, Inc.* 100 100 - - -
PSI Sunnyside, Inc.* 100 100 - - -
PSI T&D International, Inc.* 100 100 - - -
PSI Yacyreta, Inc.* 100 100 - - -
Cinergy Services, Inc. (Services) 50 100 - - -
*Inactive at December 31, 1997.
- -Amounts are less than $1,000.
Notes are on the next page.
</TABLE>
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1997
(Continued)
(1) PSI also has voting cumulative preferred stock outstanding at December 31,
1997, as follows:
Class Shares outstanding Vote per share
Par value $100 640,302 1 vote
Par value $25 3,726,636 1/4 vote
(2) In 1997, PSI Power Resource Operations, Inc. was renamed Cinergy- Cadence,
Inc. and is dedicated solely to holding Investments' one-third ownership
interest in Cadence.
(3) Cadence, a Delaware limited liability company, was formed during the third
quarter of 1997 as a joint venture with New Century Energies, Inc. and
Florida Progress Corporation to provide a single source for both energy
management services and products designed to lower energy costs for
national customers that operate in multiple locations across the country.
These services include consolidated billing, bill auditing, and usage
analysis. Cadence commenced operations in the third quarter of 1997.
(4) Capital and Trading, an Indiana corporation, was formed to engage in the
business of marketing power, electricity futures, and trading related
energy products and services and to provide consulting services in the
wholesale power-related markets. In June 1997, Capital and Trading acquired
the assets and personnel of Greenwich Energy Partners, which specialized in
energy risk management, marketing, and proprietary arbitrage trading.
(5) CinCap, a Delaware limited liability company, was formed in December 1997
to engage in marketing and trading of energy commodities.
(6) Engineering, an Ohio corporation, was formed in March 1997. Engineering
provides engineering designs and engineering technical support in
connection with various energy-related projects and proposals.
(7) PSI International, Inc., an Indiana corporation, was renamed Cinergy
International, Inc. during 1997, and was otherwise inactive in 1997.
(8) Cinergy Global, a Delaware corporation, formed in September 1997, holds all
of the equity of MPII/Z which in turn holds a 39% ownership interest in
Copperbelt. Cinergy Global also owns all of the equity of MPI
International, a United Kingdom (UK) company. During the third quarter of
1997, MPI International assumed ownership of all of the projects in
development and all future projects of Midlands Power International, a
subsidiary of Midlands. Cinergy Global, through MPI International, will
acquire and/or develop energy projects throughout the world.
(9) Cinergy MPI I through XV, Cayman Island corporations, were formed in
September 1997 for utilization in connection with future exempt wholesale
generator (EWG) or foreign utility company (FUCO) acquisitions by Cinergy.
(10) MPII/Z, incorporated in The Netherlands, was acquired by Cinergy Global
during 1997 and holds a 39% equity interest in Copperbelt, a FUCO organized
under the laws of the Republic of Zambia. Copperbelt holds certain electric
generation, transmission, and distribution assets formerly held by the
Republic of Zambia through the Power Division of Zambia Consolidated Copper
Mines Limited.
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1997
(Continued)
(11) Solutions, a Delaware corporation, was formed in February 1997. Solutions
was formed to market an array of energy-related products and services and
develop, acquire, own, and operate certain energy-related projects.
Trigen-Cinergy, a Delaware limited liability company, was also formed in
February 1997 to build, own, and operate cogeneration and trigeneration
facilities for industrial plants, office buildings, shopping centers,
hospitals, universities, and other major energy users that can benefit from
combined heat and power production economies. Trigen-Cinergy will also
provide energy and asset management services, including fuel procurement,
ancillary to its activities. Solutions owns 50% of Trigen-Cinergy.
(12) Trigen-Cinergy Cincinnati, an Ohio limited liability company, was formed
during the third quarter of 1997. Effective August 1997, Cinergy Cooling
Corp. was merged with and into Trigen-Cinergy Cincinnati, with
Trigen-Cinergy Cincinnati being the surviving company jointly owned by
Solutions (51%) and Trigen Solutions, Inc. (49%). Trigen-Cinergy Cincinnati
has an exclusive franchise from the City of Cincinnati which permits it to
maintain and operate a chilled water system in the downtown business
district of Cincinnati, Ohio.
(13) Trigen-Cinergy Illinois, a Delaware limited liability company, was formed
during the second quarter of 1997 and will provide energy services,
including cogeneration, steam, and compressed air, to a manufacturing
facility in Illinois.
(14) During 1997, Cinergy Resources expanded its business to include retail
marketing of electricity. Cinergy Resources is participating in a pilot
program in Pennsylvania under which electric customers throughout the state
will have the right to choose their electricity supplier. Cinergy Resources
began delivering power to Pennsylvania customers in December 1997.
<PAGE>
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
None
<PAGE>
<TABLE>
<CAPTION>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES
<S> <C> <C> <C> <C> <C> <C>
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)
PSI
Rule 52 (See certificate
City of Princeton of notification on form
Variable Rate Notes due U-6B-2 filed on
April 1, 2022 PSI $ 35,000 2/26/97 $ 35,000 March 4, 1997.)
CG&E
Rule 52 (See certificate
Liquid Asset Notes of notification on form
with Coupon Exchange, U-6B-2 filed on
due October 1, 2007 CG&E $100,000 10/9/97 $100,786 October 20, 1997.)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES
<S> <C> <C> <C> <C> <C> <C>
Name of Company Principal Extinguished (E) Commission
Acquiring, Number of Amount or Held for Authorization
Name of Issuer Redeeming, or Shares Retired Consideration Further or
and Title of Issue Retiring Securities Redeemed (thousands) (thousands) Disposition (D) Exemption
CG&E
First Mortgage Bonds
5 7/8% Series CG&E $ 30,000 $ 30 000 E Rule 42
6 1/4% Series CG&E 100,000 100,000 E Rule 42
8 1/8% Series CG&E 60,000 60,432 E Rule 42
8.95% Series CG&E 100,000 100,000 E Rule 42
Cumulative Preferred Stock
Par value $100 per share
4% Series CG&E 1 1 E Rule 42
4 3/4% Series CG&E 3,525 352 234 E Rule 42
PSI
First Mortgage Bonds
Series NN, 7.60% Series
(Pollution Control) PSI 35,000 35,000 E Rule 42
Secured Medium-term Notes
Series A PSI 10,000 10,000 E Rule 42
Cumulative Preferred Stock
Par value $100 per share
3 1/2% Series PSI 265 26 12 E Rule 42
7.15% Series PSI 158,640 15,864 1,602 E Rule 42
Par value $25 per share
4.32% Series PSI 1 - - E Rule 42
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
<S> <C> <C> <C>
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)
CG&E $ 51 3 Limited partnerships which own, rehabilitate, and maintain apartment
buildings for low income housing
CG&E 820 2 Limited partnerships which invest in small and minority- or female-
owned businesses
CG&E 15 1 Community improvement fund
CG&E 833 1 Limited liability corporation which invests in projects relating to
downtown Cincinnati
ULH&P 2 2 Economic development corp.
PSI 3,839 3 Limited partnerships which make long-term investments in Indiana and
other mid-western 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 138 1 Manufacturer of construction materials
PSI 1 1 Economic development corp.
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
Investments 833 1 Limited liability corporation which invests in projects relating to
downtown Cincinnati
Technology 833 1 Limited liability corporation which invests in projects relating to
downtown Cincinnati
Cinergy 834 1 Limited liability corporation which invests in projects relating to
downtown Cincinnati
<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 interest in six unrelated companies.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES (Continued)
2. Securities not included in Item 5, No. 1:
<S> <C> <C> <C> <C> <C> <C>
Owner's
Name of Name of Description Number of % of Nature of Book Value
Company Issuer of Security Shares Voting Power Business (in thousands)
------- -------------------- ----------------- --------- ------------ -------------------------- --------------
Ohio Valley
CG&E Electric Corp. Common stock 9,000 9% Public Utility $ 900
Circle
PSI Center Mall Limited partnership N/A 4.2% Shopping Mall in
Indianapolis, Indiana 3,015
Refurbishes and
EMC Technologies, manufactures large
PSI Inc. Preferred stock 3,483 (1) electrical equipment 4
Invests in minority-owned
PSI Lynx Capital Corp. Stock 25 (1) businesses 127
Nth Power
Technology Invests in energy
Cinergy Fund I, L.P. Limited partner N/A 20% technology companies 1,753
<FN>
(1) Not available
</FN>
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Cinergy
Neil A. Armstrong (a) D
James K. Baker (c) D
Michael G. Browning (d) D
Phillip R. Cox (e) D
Kenneth M. Duberstein (f) D
John A. Hillenbrand II (g) D
George C. Juilfs (h) D
Melvin Perelman, Ph.D. (i) D
Thomas E. Petry (j) D
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,P,CEO
John J. Schiff, Jr. (k) D
Philip R. Sharp, Ph.D. (l) D
Van P. Smith (m) D
Dudley S. Taft (n) D
Oliver W. Waddell (o) D
Cheryl M. Foley (a) VP,GC,S
William J. Grealis (a) VP
J. Joseph Hale, Jr. (a) VP
Stephen Harkness (b) VP
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
J. Wayne Leonard (a)(1) VP
Jerry W. Liggett (a) VP
Madeleine W. Ludlow (a) VP,CFO
John M. Mutz (b) VP
Michael M. Sample (b) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Larry E. Thomas (a) VP
Charles J. Winger (a) VP
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
Services
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,P,CEO
Todd W. Arnold (a) VP
Leo P. Denault (a) VP
Cheryl M. Foley (a) D,VP,GC,S
William J. Grealis (a) D,VP
J. Joseph Hale, Jr. (a) VP
Stephen Harkness (b) VP
Donald B. Ingle, Jr. (a) VP
Dale Justis (b) VP
Albert Keys (a) VP
Paul E. King (a) VP
Elizabeth K. Lanier (a) VP,CS
J. Wayne Leonard (a)(1) D,VP
Jerry W. Liggett (a) VP
Madeleine W. Ludlow (a) D,VP,CFO
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Services (Continued)
Michael E. Martin (a) VP
John M. Mutz (b) VP
Leigh J. Pefley (a) VP
John C. Procario (a) VP
C. Randolph (a) VP
Bernard F. Roberts (a) VP
Michael M. Sample (b) VP
William L. Sheafer (a) VP,T
Riaz Q. Siddiqi (a) VP
Richard J. Smith (a) VP
Larry E. Thomas (a) D,VP
James L. Turner (a) VP
James H. Willis (b) VP
Charles J. Winger (a) VP
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
John E. Polley (a) AS
M. Susan Hardwick (a) AC
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
CG&E
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) D,P
Cheryl M. Foley (a) VP,GC,S
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
Wayne Leonard (a) (1) VP
Madeleine W. Ludlow (a) VP,CFO
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
ULH&P
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,VP,GC,S
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
Wayne Leonard (a) (1) D,VP
Madeleine W. Ludlow (a) D,VP,CFO
Larry E. Thomas (a) D,VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
ULH&P (Continued)
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
Tri-State
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
J. Wayne Leonard (a)(1) D
Larry E. Thomas (a) D
Elizabeth K. Lanier (a) VP
Madeleine W. Ludlow (a) VP
Cheryl M. Foley (a) S
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Lawrenceburg
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) P
Cheryl M. Foley (a) VP,GC,S
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
J. Wayne Leonard (a)(1) VP
Madeleine W. Ludlow (a) VP,CFO
John M. Mutz (b) D
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
Vincent E. Andres (a) D
Bernard L. Huff (a) D
West Harrison
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) P
Cheryl M. Foley (a) VP,GC,S
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
Wayne Leonard (a) (1) VP
Madeleine W. Ludlow (a) VP,CFO
John M. Mutz (b) D
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
West Harrison (Continued)
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
Vincent E. Andres (a) D
Bernard L. Huff (a) D
Miami
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) P
Cheryl M. Foley (a) VP,GC,S
Elizabeth K. Lanier (a) VP,CS
Wayne Leonard (a) (1) VP
Madeleine W. Ludlow (a) VP,CFO
John M. Mutz (b) D
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
Vincent E. Andres (a) D
Bernard L. Huff (a) D
KO Transmission
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,VP,GC,S
Elizabeth K. Lanier (a) VP,CS
Wayne Leonard (a) (1) VP
Madeleine W. Ludlow (a) VP,CFO
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
John E. Polley (b) AS
Jerome A. Vennemann (a) AS
David L. Wozny (a) AC
PSI
James K. Baker (c) D
Michael G. Browning (d) D
John A. Hillenbrand II (g) D
John M. Mutz (b) D,P
Jackson H. Randolph (a) D,CM
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
PSI (Continued)
James E. Rogers (a) D,VCM,CEO
Van P. Smith (m) D
Cheryl M. Foley (a) VP,GC,S
Donald B. Ingle, Jr. (a) VP
Elizabeth K. Lanier (a) VP,CS
Madeleine W. Ludlow (a) VP,CFO
J. Wayne Leonard (a)(1) VP
Larry E. Thomas (a) VP
William L. Sheafer (a) VP,T
John P. Steffen (a) C
Wendy L. Aumiller (a) AT
M. Susan Hardwick (a) AC
David L. Wozny (a) AC
Ronald J. Brothers (b) AS
John E. Polley (a) AS
Jerome A. Vennemann (a) AS
PSI Energy Argentina
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
South Construction
Jackson H. Randolph (a) D
James E. Rogers (a) D
John M. Mutz (b) D,P
Cheryl M. Foley (a) D,S
Elizabeth K. Lanier (a) VP
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Investments
Jackson H. Randolph (a) D,CM
James E. Rogers (a) D,VCM,CEO
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,VP,GC,S
Donald B. Ingle, Jr. (a) D
J. Wayne Leonard (a)(1) D
Madeleine W. Ludlow (a) D,VP,CFO
John M. Mutz (b) D
Larry E. Thomas (a) D
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Cinergy-Cadence, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Cadence (2)
Donald B. Ingle, Jr. (a) BM
Madeleine W. Ludlow (a) BM
E. Renae Conley (a) P
Cheryl M. Foley (a) S
William L. Sheafer (a) T
Capital & Trading
Jackson H. Randolph (a) D
James E. Rogers (a) D
J. Wayne Leonard (a)(1) D,P
Cheryl M. Foley (a) D,S
Lance Bakrow (a) VP
Madeleine W. Ludlow (a) VP
Bernard F. Roberts (a) VP
Riaz Q. Siddiqi (a) VP
Arturo Vivar (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
CinCap
Cincap is a subsidiary of Capital and Trading but is inactive and had not
elected directors or officers as of December 31, 1997.
Communications
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Larry E. Thomas (a) D,VP
F. Dale Justis (b) VP
Madeleine W. Ludlow (a) VP
Leigh J. Pefley (a) VP
John C. Procario (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Engineering
Jackson H. Randolph (a) D
James E. Rogers (a) D
Scott A. Haag (a) D
Barry E. Pulskamp (a) D
John J. Roebel (a) D
Larry E. Thomas (a) P
Cheryl M. Foley (a) S
William J. Grealis (a) VP
F. Dale Justis (b) VP
Madeleine W. Ludlow (a) VP
John C. Procario (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Cinergy International, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D
Cheryl M. Foley (a) D,P
Madeleine W. Ludlow (a) VP
Michael M. Sample (b) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) S
Cinergy Global
James E. Rogers (a) D,CEO
Cheryl M. Foley (a) D,P
Madeleine W. Ludlow (a) D,VP
William J. Grealis (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Wendy L. Aumiller (a) AT
David L. Wozny (a) AC
Cinergy MPI I, Inc. - Cinergy MPI XV, Inc.
James E. Rogers (a) D,CM
Cheryl M. Foley (a) D
Madeleine W. Ludlow (a) D
John Bryant (p) MD
Philip J. Taylor (p) D
Andrew M. Turk (p) D
MPII/Z (3)
John Bryant (p) D
Andrew M. Turk (p) D
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Copperbelt (2)
John Bryant (p) D
Andrew M. Turk (p) D
MPI International
James E. Rogers (a) D
Cheryl M. Foley (a) D
Madeleine W. Ludlow (a) D
John Bryant (p) D
Philip J. Taylor (p) D
Andrew M. Turk (p) D
Hugh C. Hamilton (p) S
Cinergy Resources, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Solutions
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
J. Wayne Leonard (a)(1) D
Todd W. Arnold (a) VP
M. Stephen Harkness (b) VP
Albert Keys (a) VP
L. C. Randolph (a) VP
Richard J. Smith (a) VP
James H. Willis (b) VP
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Trigen-Cinergy (2)
James E. Rogers (a) BM
William J. Grealis (a) BM
J. Wayne Leonard (a)(1) BM
M. Stephen Harkness (b) EVP,COO
Cheryl M. Foley (a) S
William L. Sheafer (a) AT
Jerome A. Vennemann (a) AS
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Trigen-Cinergy Cincinnati (2)
James E. Rogers (a) BM
William J. Grealis (a) BM
J. Wayne Leonard (a)(1) BM
M. Stephen Harkness (b) EVP,COO
Cheryl M. Foley (a) S
William L. Sheafer (a) AT
Jerome A. Vennemann (a) AS
Trigen-Cinergy Illinois (2)
James E. Rogers (a) BM
William J. Grealis (a) BM
J. Wayne Leonard (a)(1) BM
M. Stephen Harkness (b) EVP,COO
Cheryl M. Foley (a) S
Jerome A. Vennemann (a) AS
Technology
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Elizabeth K. Lanier (a) VP
Madeleine W. Ludlow (a) VP
John M. Mutz (b) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Cinergy UK
James E. Rogers (a) D,CEO
Cheryl M. Foley (a) D,P
William J. Grealis (a) VP
Madeleine W. Ludlow (a) D,VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) S
Wendy L. Aumiller (a) AT
David L. Wozny (a) AC
Avon Energy (2)
James E. Rogers (a) D,CM
Cheryl M. Foley (a) D
Madeleine W. Ludlow (a) D
Avon Energy Partners PLC (2)
James E. Rogers (a) D,CM
Cheryl M. Foley (a) D
Madeleine W. Ludlow (a) D
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
Midlands (2)
James E. Rogers (a) D,CM
Cheryl M. Foley (a) D
Madeleine W. Ludlow (a) D
Hugh C. Hamilton (p) S
Enertech
Jackson H. Randolph (a) D
James E. Rogers (a) D
Scott A. Haag (a) D
Barry E. Pulskamp (a) D
John J. Roebel (a) D
William J. Grealis (a) P
Cheryl M. Foley (a) S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Argentina
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
Costanera
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
PSI Power Resource Development, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part I
POSITION HELD AT
NAME (ADDRESS)* DECEMBER 31, 1997*
PSI Sunnyside, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
PSI T&D International, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
PSI Yacyreta, Inc.
Jackson H. Randolph (a) D
James E. Rogers (a) D
William J. Grealis (a) D,P
Cheryl M. Foley (a) D,S
Madeleine W. Ludlow (a) VP
William L. Sheafer (a) T
John P. Steffen (a) C
Jerome A. Vennemann (a) AS
* Address codes, position descriptions, and notes are listed on page 23.
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (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) 105 East Fourth Street, Suite 600, Cincinnati, Ohio 45202
(f) 2100 Pennsylvania Avenue, N.W., Suite 350, Washington, D.C. 20037
(g) 324 Mitchell Avenue, Batesville, Indiana 47006
(h) One Riverfront Place, Newport, Kentucky 41071
(i) 8751 Jaffa Court, E. Drive, Apt. 16, Indianapolis, Indiana 46260
(j) 580 Walnut Street, P.O. Box 779, Cincinnati, Ohio 45201
(k) P.O. Box 145496, Cincinnati, Ohio 45250-5496
(l) 79 JFK Street, Cambridge, Massachusetts 02138
(m) 123 East Adams Street, Muncie, Indiana 47305
(n) 312 Walnut Street, Suite 3550, Cincinnati, Ohio 45202
(o) P.O. Box 1038, 425 Walnut Street, Cincinnati, Ohio 45201-1038
(p) Mucklow Hill, Halesowen, West Midlands B62 8BP, UK
Positions are indicated by the following symbols:
AC Assistant Comptroller
AS Assistant Secretary
AT Assistant Treasurer
BM Board of Managers
C Comptroller
CEO Chief Executive Officer
CFO Chief Financial Officer
COO Chief Operating Officer
CM Chairman of the Board
CS Chief of Staff
D Director
EVP Executive Vice President
GC General Counsel
MD Managing Director
P President
S Secretary
T Treasurer
VCM Vice Chairman
VP Vice President
Notes:
(1) Effective March 31, 1998, J. Wayne Leonard resigned from Cinergy and all
other Cinergy system companies.
(2) For entities which are not wholly owned directly or indirectly by Cinergy or
its system entities, disclosure is limited to those officers and directors who
are directly employed by Cinergy or its system entities.
(3) For MPII/Z, disclosure is limited to those directors (officers non-
applicable) who are directly employed by Cinergy or its system entities.
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1997 (Continued)
Part II
<S> <C> <C> <C>
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
James K. Baker First Chicago NBD Corp. Director 70(b),(d)
Chicago, Illinois
Phillip R. Cox Cincinnati office of the Director 70(h)
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),(c)
Indianapolis, Indiana
George C. Juilfs Cincinnati office of the Chairman, Director 70(h)
Federal Reserve Bank
of Cleveland
Cleveland, Ohio
John M. Mutz National City Bank Director 70(c),(e),(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),(d),
Pittsburgh, Pennsylvania (e),(f)
PNC Bank, Ohio, N.A. Director 70(a),(c),
Cincinnati, Ohio (e),(f)
James E. Rogers Fifth Third Bancorp Director 70(a),(c),
Cincinnati, Ohio (e),(f)
The Fifth Third Bank Director 70(a),(c),
Cincinnati, Ohio (e),(f)
John J. Schiff, Jr. Fifth Third Bancorp Director 70(a)
Cincinnati, Ohio
The Fifth Third Bank Director 70(a)
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, 1997 (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:
Cinergy Corp 1998 Proxy Statement and 1997 Financial Report (Proxy
Statement*), pages 8 through 18 for Cinergy and Investments and
subsidiaries.
1997 Annual Report on Form 10-K (Form 10-K), pages 155 through 156, for
CG&E and subsidiaries.
1998 PSI Information Statement (Information Statement*), pages 5 through
15 (as supplemented in Exhibit F-10), 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-10) made in the:
Proxy Statement, page 9, for Cinergy and Investments and subsidiaries.
Form 10-K, pages 156 through 157, for CG&E and subsidiaries.
Information Statement, page 4, 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 16 through 18, for Cinergy and Investments and
subsidiaries.
Information Statement, pages 13 through 15, 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 indemnify 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>
<TABLE>
<CAPTION>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
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.
(2)
<S> <C> <C> <C> <C>
Name of Company Name of Recipient or Beneficiary Purpose Account Charged* Amount
--------------- ----------------------------------------------- ------------------- ---------------- ------------
CG&E Electric Power Research Institute Dues, support (2),(3) $1,248,751
Less than $10,000 - 25 beneficiaries Dues, fees, support (1),(2),(3) 26,761
----------
$1,275,512
ULH&P Electric Power Research Institute Dues (2) $ 199,791
Less than $10,000 - 13 beneficiaries Dues, fees, support (2),(3) 18,070
----------
$ 217,861
PSI Electric Power Research Institute Dues, fees, support (2),(3) $1,493,202
Indiana Chamber of Commerce Support (2) 15,182
Less than $10,000 - 72 beneficiaries Dues, fees, support (1),(2),(3) 57,534
----------
$1,565,918
Cinergy Less than $10,000 - 3 beneficiaries Support (1) $ 640
Resources ----------
$ 640
Capital Less than $10,000 - 1 beneficiary Support (1) $ 1,400
& Trading ----------
$ 1,400
Cinergy Cooling Less than $10,000 - 1 beneficiary Dues (1) $ 585
Corp. ----------
$ 585
Cinergy Less than $10,000 - 1 beneficiary Support (1) $ 650
----------
$ 650
<FN>
* Account Charged:
(1) Income deduction
(2) Operating expense
(3) Other balance sheet accounts
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 8. SERVICE, SALES, AND CONSTRUCTION CONTRACTS
Part I
<S> <C> <C> <C> <C> <C>
In Effect
Dec. 31,
Serving Receiving Date of 1997
Transaction Company Company Compensation Contract (Yes or No)
(in thousands)
Propane plant and underground storage cavern ULH&P CG&E $209 5/23/61 Yes
[GRAPHIC OMITTED]
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 8 SERVICE, SALES, AND CONSTRUCTION CONTRACTS(Continued)
Part I
<S> <C> <C> <C>
Serving Receiving
Transaction Company Company Compensation
(in thousands)
Customer relations services(1) CG&E ULH&P $868
Gas and/or electric operations(1) CG&E ULH&P $569
Part II
None
Part III
None
<FN>
(1) Pursuant to Rel. No. 35-26146, dated October 21, 1994.
</FN>
</TABLE>
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part I
(a) PSI Energy Argentina
PSI Energy Argentina is a FUCO.
PSI Energy Argentina, an Indiana corporation, owns a 2% 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.
The business address of PSI Energy Argentina is 251 North Illinois Street, Suite
1410, Indianapolis, Indiana 46204.
Midlands
Midlands is also a FUCO.
Cinergy indirectly owns 50% of Midlands, a corporation organized under the laws
of England, which serves approximately 2.2 million customers in mid-central
England. One of twelve regional electric companies in England, Midlands is
primarily a distribution company, purchasing most of its electricity
requirements from third party generators.
The business address of Midlands is Mucklow Hill, Halesowen, West Midlands B62
8BP, UK.
Copperbelt
Copperbelt is also a FUCO.
Cinergy indirectly owns 39% of Copperbelt, a corporation organized under the
laws of the Republic of Zambia, that owns and operates certain electric
generation, transmission, and distribution assets formerly held by the Republic
of Zambia, through the Power Division of Zambia Consolidated Copper Mines
Limited. The assets are located in and around the city of Kitwe in north central
Zambia.
The business address of Copperbelt is 23rd Avenue, Nkana East, P.O. Box 20819,
Kitwe, Zambia
(b) PSI Energy Argentina
PSI holds 100 shares of PSI Energy Argentina's no par value common stock. At
December 31, 1997, PSI's equity investment in PSI Energy Argentina was $11
million.
Cinergy has neither directly nor indirectly guaranteed any securities of PSI
Energy Argentina. PSI Energy Argentina has no debt or other financial
obligations outstanding.
No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to
PSI Energy Argentina.
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (continued)
Midlands
Avon Energy holds all of Midlands common stock. At December 31, 1997, Cinergy's
equity investment in Midlands was $503 million.
The total consideration paid by Avon Energy was approximately 1.7 billion pounds
sterling ($2.6 billion at then existing currency exchange rates). The funds for
the acquisition were obtained from Cinergy's and GPU's investment in Avon Energy
of approximately 330 million pounds sterling each ($500 million each), with the
remainder being obtained by Avon Energy through the issuance of non-recourse
debt. Cinergy has used dollar denominated debt to finance its entire $503
million equity investment in Midlands, with Cinergy initially borrowing $471
million under a bank credit facility and Cinergy UK initially borrowing $32
million under a separate bank credit facility. At December 31, 1997, Cinergy's
outstanding borrowings under the bank credit facility were $350 million and
outstanding commercial paper issuances were $150 million. Cinergy UK's original
bank credit facility was replaced in September 1997 with a one year, $115
million non-recourse revolving credit agreement, which had $3 million
outstanding at December 31, 1997 related to Midlands. The lenders under the
latter facility have recourse solely to Cinergy UK and its assets for repayment
of borrowings thereunder.
Cinergy has neither directly nor indirectly guaranteed any securities of
Midlands.
No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to
Midlands.
Copperbelt
MPII/Z, a Netherlands company, substantially all of whose equity is held by
Cinergy Global (a direct subsidiary of Investments) holds 3.9 million Ordinary
Shares of Copperbelt. MPII/Z financed its purchase of the 3.9 million Ordinary
Shares entirely with funds that are non-recourse, directly or indirectly, to
Cinergy. The ultimate source for such funds was a short-term credit facility
maintained by Cinergy UK. For more information, see the Rule 24 certificate
filed on February 13, 1998 in File No. 70- 8589.
Cinergy has neither directly nor indirectly guaranteed any securities of
Copperbelt.
No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to
Copperbelt.
(c) PSI Energy Argentina
PSI Energy Argentina had no debt outstanding at December 31, 1997.
Earnings for the year ended December 31, 1997, were $753 thousand for PSI Energy
Argentina.
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (continued)
Midlands
Filed pursuant to Rule 104(b). See Exhibit J for the required information.
Copperbelt
Copperbelt was newly privatized, and Cinergy obtained its ownership interest, in
the fourth quarter of 1997. As a result, Cinergy has not obtained complete,
meaningful financial statements for Copperbelt as of December 31, 1997 and
therefore is not in a position to perform the requested calculations as of
December 31, 1997.
(d) PSI Energy Argentina, Midlands, and Copperbelt
Non-utility service agreement, as amended, among Cinergy, non- utility
subsidiaries of Cinergy and Services. (Pursuant to Rel. No. 35-26662, dated
2-7-97.)
In 1997, Services rendered accounting, executive, financial, legal and tax
services to PSI Energy Argentina in the amount of $29,000.
No services were provided to Midlands or Copperbelt during 1997.
Part II PSI Energy Argentina, Midlands, and Copperbelt
See the following Exhibits
H Organizational chart showing the relationship of PSI
Energy Argentina, Midlands, and Copperbelt to other
system companies.
I-1 Audited Financial Statements for PSI Energy Argentina for
the year ended December 31, 1997.
I-2 Financial Statements for Midlands for the year ended
December 31, 1997. (Filed pursuant to Rule 104(b).)
Note: As previously mentioned, Copperbelt was newly privatized and Cinergy
obtained its ownership interest in the fourth quarter of 1997. As a result,
Cinergy has not obtained complete, meaningful financial statements for
Copperbelt as of December 31, 1997.
Part III PSI Energy Argentina, Midlands, and Copperbelt
Cinergy had an aggregate investment of $486 million in FUCOs (and no investment
in EWGs) at December 31, 1997. The ratio of Cinergy's aggregate investment in
FUCOs to its investment in domestic public utility subsidiary companies is 18%.
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Consolidating Financial Statements, Schedules, and Notes
- - Notes 1 through 18 to the Financial Statements are incorporated herein by
reference, in Exhibit A (page 33), in the Cinergy Annual Report on Form
10-K for 1997 (Item 8. Financial Statements and Supplementary Data).
- - Notes 1 through 18 to the Financial Statements are incorporated herein by
reference, in Exhibit A (page 33), in the CG&E Annual Report on Form 10-K
for 1997 (Item 8. Financial Statements and Supplementary Data).
- - Notes 1 through 18 to the Financial Statements are incorporated herein by
reference, in Exhibit A (page 33), in the PSI Annual Report on Form 10-K for
1997 (Item 8. Financial Statements and Supplementary Data).
- - Notes 1 through 18 to the Financial Statements are incorporated herein by
reference, in Exhibit A (page 33), in the ULH&P Annual Report on Form 10-K
for 1997 (Item 8. Financial Statements and Supplementary Data).
Exhibits
- - F-1 Consent of Independent Public Accountants.
- - F-2 Consolidating Financial Statements of Cinergy for 1997.
- - F-3 Consolidating Financial Statements of CG&E for 1997.
- - F-4 Consolidating Financial Statements of Investments for 1997.
(Filed pursuant to Rule 104(b).)
- - F-5 Consolidating Financial Statements of PSI for 1997.
- - F-6 Consolidating Financial Statements of Avon Energy for 1997.
(Filed pursuant to Rule 104(b).)
- - F-7 Financial Statements for Cadence for 1997.
(Filed pursuant to Rule 104(b).)
- - F-8 Financial Statements for Trigen-Cinergy for 1997.
(Filed pursuant to Rule 104(b).)
- - F-9 Financial Statements for Trigen-Cinergy Cincinnati for 1997.
(Filed pursuant to Rule 104(b).)
- - F-10 Item 6. Part III - Supplemental Information Regarding Compensation
and Security Ownership of Officers and Directors of System Companies.
- - H Organizational chart showing the relationship of PSI Energy Argentina,
Midlands, and Copperbelt to other system companies.
- - I-1 Audited Financial Statements of PSI Energy Argentina for the year
ended December 31, 1997.
- - I-2 Financial Statements for Midlands for the year ended December 31,
1997 (Filed pursuant to Rule 104(b).)
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (continued)
- - J Response to Item 9, Part I (c) for Midlands. (Filed pursuant to
Rule 104(b).)
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 for the year ended
December 31, 1997. (File No. 1-11377.)
A-2 *1998 Proxy Statement and 1997 Financial Report for the
year ended December 31, 1997. (File No. 1-11377.)
A-3 *Annual Report of CG&E on Form 10-K for the year ended
December 31, 1997. (File No. 1-1232.)
A-4 *Annual Report of PSI on Form 10-K for the year ended
December 31, 1997. (File No. 1-3543.)
A-5 *Annual Report of ULH&P on Form 10-K for the year ended
December 31, 1997. (File No. 2-7793.)
Note: During 1997, the following 16 companies amended their charters for the
sole purpose of designating a new registered agent (copies of which are
available upon request):
PSI Energy Argentina, Inc.
South Construction Company, Inc.
Cinergy-Cadence, Inc.
Cinergy Capital & Trading, Inc.
Cinergy International, Inc.
Cinergy Technology, Inc.
PSI Argentina, Inc.
Costanera Power Corp.
PSI Power Resource Development, Inc.
PSI Sunnyside, Inc.
PSI T&D International, Inc.
PSI Yacyreta, Inc.
Lawrenceburg Gas Company
The West Harrision Gas and Elecric Company
Miami Power Corporation
KO Transmission Company
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 December 18, 1997 (Exhibit
to Cinergy's 1997 Form 10-K in File No. 1-11377)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBIT
B-3 *Amended Articles of Incorporation of CG&E effective
October 23, 1996. (Exhibit to CG&E's September 30, 1996,
Form 10-Q in File No. 1-1232.)
B-4 *Regulations of CG&E as amended, adopted April 25, 1996.
(Exhibit to CG&E's March 31, 1996, Form 10-Q, 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 *Amendment to Article D of the Amended Articles of Consolidation
of PSI Energy, Inc., effective July 10, 1997. (Exhibit to PSI's
1997 Form 10-K in File No.
1-3543)
B-7 *By-laws of PSI as amended October 22, 1996. (Exhibit to
PSI's September 30, 1996, Form 10-Q in File No. 1-3543.)
B-8 *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-9 *By-laws of ULH&P as amended, adopted May 8, 1996.
(Exhibit to ULH&P's March 31, 1996, Form 10-Q in
File No. 2-7793.)
B-10 *Amendment to Restated Articles of Incorporation of ULH&P (Article
Third) and Amendment to the By-Laws of ULH&P (Article 1), both
effective July 24, 1997. (Exhibit to ULH&P's Form 10-K in File No.
2-7793.)
B-11 *Articles of Incorporation of South Construction. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-12 *By-laws of South Construction. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-13 *Articles of Incorporation of PSI Energy Argentina. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-14 *By-laws of PSI Energy Argentina. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-15 *Certificate of Incorporation of Services. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-16 *By-laws of Services. (Exhibit to Cinergy's Form U5S filed May 1,
1996.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBIT
B-17 *Articles of Incorporation of Miami as amended. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-18 *By-laws of Miami. (Exhibit to Cinergy's Form U5S filed May 1,
1996.)
B-19 *Articles of Incorporation of West Harrison as amended. (Exhibit
to Cinergy's Form U5S filed May 1, 1996.)
B-20 *By-laws of West Harrison. (Exhibit to Cinergy's Form U5S filed
May 1, 1996.)
B-21 *Articles of Incorporation of Lawrenceburg. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-22 *By-laws of Lawrenceburg. (Exhibit to Cinergy's Form U5S filed May
1, 1996.)
B-23 *Articles of Incorporation of Tri-State. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-24 *Regulations of Tri-State. (Exhibit to Cinergy's Form U5S filed
May 1, 1996.)
B-25 *Articles of Incorporation of KO Transmission. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-26 *By-laws of KO Transmission. (Exhibit to Cinergy's Form U5S filed
May 1, 1996.)
B-27 *Certificate of Incorporation of Investments. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-28 *By-laws of Investments. (Exhibit to Cinergy's Form U5S filed May
1, 1996.)
B-29 *Certificate of Incorporation of Cinergy Resources. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-30 *By-laws of Cinergy Resources. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-31 *Articles of Incorporation of Technology. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-32 *By-laws of Technology. (Exhibit to Cinergy's Form U5S filed May
1, 1996.)
B-33 *Articles of Incorporation of Argentina. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-34 *By-laws of Argentina. (Exhibit to Cinergy's Form U5S filed May 1,
1996.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBIT
B-35 *Articles of Incorporation of Costanera. (Exhibit to Cinergy's
Form U5S filed May 1, 1996.)
B-36 *By-laws of Costanera. (Exhibit to Cinergy's Form U5S filed May 1,
1996.)
B-37 *Articles of Incorporation of Cinergy International, Inc. (Exhibit
to Cinergy's Form U5S filed May 1, 1996.)
B-38 Amended Articles of Incorporation of Cinergy International, Inc.
(The sole purpose of the amendment was to change PSI International
Inc.'s name to Cinergy International, Inc. Copies of the amended
Articles of Incorporation are available upon request.)
B-39 *By-laws of Cinergy International, Inc. (Exhibit to Cinergy's Form
U5S filed May 1, 1996.)
B-40 *Articles of Incorporation of PSI Power Resource
Development, Inc. (Exhibit to Cinergy's Form U5S filed May
1, 1996.)
B-41 *By-laws of PSI Power Resource Development, Inc. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-42 *Articles of Incorporation of Cinergy-Cadence, Inc. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-43 Amended Articles of Incorporation of Cinergy-Cadence, Inc. (The
sole purpose of the amendment was to change PSI Power Resource
Operations, Inc.'s name to Cinergy-Cadence, Inc. Copies of the
amended Articles of Incorporation are available upon request.)
B-44 *By-laws of Cinergy Cadence, Inc., (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-45 Item not used.
B-46 Item not used.
B-47 *Articles of Incorporation of PSI Sunnyside, Inc. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-48 *By-laws of PSI Sunnyside, Inc. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-49 *Articles of Incorporation of PSI T&D International, Inc. (Exhibit
to Cinergy's Form U5S filed May 1, 1996.)
B-50 *By-laws of PSI T&D International, Inc. (Exhibit to Cinergy's Form
U5S filed May 1, 1996.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
B-51 *Articles of Incorporation of PSI Yacyreta, Inc. (Exhibit to
Cinergy's Form U5S filed May 1, 1996.)
B-52 *By-laws of PSI Yacyreta, Inc. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-53 *Amended Articles of Incorporation of Enertech. (Exhibit to
Cinergy's Form U5S filed May 1, 1997.)
B-54 *Regulations of Enertech. (Exhibit to Cinergy's Form U5S filed May
1, 1996.)
B-55 *Amended Articles of Incorporation of Capital & Trading. (Exhibit
to Cinergy's Form U5S filed May 1, 1997.)
B-56 *By-laws of Capital & Trading. (Exhibit to Cinergy's Form U5S
filed May 1, 1996.)
B-57 *Certificate of Incorporation of Communications. (Exhibit to
Cinergy's Form U5S filed May 1, 1997.)
B-58 *By-laws of Communications. (Exhibit to Cinergy's Form U5S filed
May 1, 1997.)
B-59 *Certificate of Incorporation of Cinergy, UK. (Exhibit to
Cinergy's Form U5S filed May 1, 1997.)
B-60 *By-laws of Cinergy, UK. (Exhibit to Cinergy's Form U5S filed May
1, 1997.)
B-61 *Articles of Association of Avon Energy Partners
Holdings. (Exhibit to Cinergy's Form U5S filed May 1,
1997.)
B-62 *Articles of Association of Avon Energy Partners PLC. (Exhibit to
Cinergy's Form U5S filed May 1, 1997.)
B-63 *Articles of Association of Midlands. (Exhibit to Cinergy's Form
U5S filed May 1, 1997.)
B-64 Certificate of Formation of Cadence Network LLC.
B-65 Certificate of Formation of CinCap IV, LLC
B-66 Articles of Incorporation of Cinergy Engineering, Inc.
B-67 Regulations Of Cinergy Engineering, Inc.
B-68 Certificate of Incorporation of Cinergy Global Power, Inc.
(Formerly Cinergy Investments MPI, Inc.)
B-69 By-laws Of Cinergy Global Power, Inc.
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
B-70 Memorandum of Association of Cinergy MPI I, Inc.
(Memorandums of Association of Cinergy MPI II, Inc.
through Cinergy MPI XV, Inc. are identical to that of
Cinergy MPI I, Inc. and will be furnished upon request.)
B-71 Articles of Association of Cinergy MPI I, Inc.
(Articles of Association of Cinergy MPI II, Inc.
through Cinergy MPI XV, Inc. are identical to that of
Cinergy MPI I, Inc. and will be furnished upon request.)
B-72 Formation documents of MPII (Zambia) B.V. (At the time of the
filing of this Form U5S for 1997, these documents were not
available to Cinergy or its system companies. These documents will
be submitted with the 1998 Form U5S.)
B-73 Formation documents of Copperbelt Energy Corporation PLC. (At the
time of the filing of this Form U5S for 1997, these documents were
not available to Cinergy or its system companies. These documents
will be submitted with the 1998 Form U5S.)
B-74 Certificate of Incorporation on name change of MPI International
Limited.
B-75 Certificate of Incorporation of Cinergy Solutions, Inc.
B-76 By-laws of Cinergy Solutions, Inc.
B-77 Certificate of Formation of Trigen-Cinergy Solutions LLC.
B-78 Articles of Organization of Trigen-Cinergy Solutions of
Cincinnati.
B-79 Certificate of Formation of Trigen Cinergy Solutions of
Illinois L.L.C.
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.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
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 *Thirty-seventh Supplemental Indenture between CG&E and The Bank
of New York dated as of October 4, 1996. (Exhibit to Cinergy's
1996 Form 10-K in File No. 1-11377.)
C-13 *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-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 *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.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
C-16 *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-17 *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-18 *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-19 *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-20 *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-21 *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-22 *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-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 *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-25 *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-26 *Nineteenth Supplemental Indenture between PSI and The First
National Bank of Chicago dated January 1, 1972.
(Exhibit to File No. 2-42545.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
C-27 *Twenty-third Supplemental Indenture between PSI and The First
National Bank of Chicago dated January 1, 1977.
(Exhibit to File No. 2-57828.)
C-28 *Twenty-fifth Supplemental Indenture between PSI and The First
National Bank of Chicago dated September 1, 1978.
(Exhibit to File No. 2-62543.)
C-29 *Twenty-seventh Supplemental Indenture between PSI and The First
National Bank of Chicago dated March 1, 1979.
(Exhibit to File No. 2-63753.)
C-30 *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-31 *Thirty-ninth Supplemental Indenture between PSI and The First
National Bank of Chicago LaSalle National Bank dated March 15,
1987. (Exhibit to PSI's 1987 Form 10-K in File No. 1-3543.)
C-32 *Forty-first Supplemental Indenture between PSI and LaSalle
National Bank dated June 15, 1988. (Exhibit to PSI's 1988 Form
10-K in File No. 1-3543.)
C-33 *Forty-second Supplemental Indenture between PSI and LaSalle
National Bank dated August 1, 1988. (Exhibit to PSI's 1988 Form
10-K in File No. 1-3543.)
C-34 *Forty-fourth Supplemental Indenture between PSI and LaSalle
National Bank dated March 15, 1990. (Exhibit to PSI's 1990 Form
10-K in File No. 1-3543.)
C-35 *Forty-fifth Supplemental Indenture between PSI and LaSalle
National Bank dated March 15, 1990. (Exhibit to PSI's 1990 Form
10-K in File No. 1-3543.)
C-36 *Forty-sixth Supplemental Indenture between PSI and LaSalle
National Bank dated June 1, 1990. (Exhibit to PSI's 1991 Form 10-K
in File No. 1-3543.)
C-37 *Forty-seventh Supplemental Indenture between PSI and LaSalle
National Bank dated July 15, 1991. (Exhibit to PSI's 1991 Form
10-K in File No. 1-3543.)
C-38 *Forty-eighth Supplemental Indenture between PSI and LaSalle
National Bank dated July 15, 1992. (Exhibit to PSI's 1992 Form
10-K in File No. 1-3543.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
C-39 *Forty-ninth Supplemental Indenture between PSI and LaSalle
National Bank dated February 15, 1993. (Exhibit to PSI's 1992 Form
10-K in File No. 1-3543.)
C-40 *Fiftieth Supplemental Indenture between PSI and LaSalle National
Bank dated February 15, 1993. (Exhibit to PSI's 1992 Form 10-K in
File No. 1-3543.)
C-41 *Fifty-first Supplemental Indenture between PSI and LaSalle
National Bank dated February 1, 1994. (Exhibit to PSI's 1993 Form
10-K in File No. 1-3543.)
C-42 *Indenture (Secured Medium-term Notes, Series A), dated
July 15, 1991, between PSI and LaSalle National Bank, as
Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2,
dated July 15, 1993, in File No. 1-3543.)
C-43 *Indenture (Secured Medium-term Notes, Series B), dated
July 15, 1992, between PSI and LaSalle National Bank, as
Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2,
dated July 15, 1993, in File No. 1-3543.)
C-44 *Loan Agreement between PSI and the City of Princeton, Indiana
dated as of November 7, 1996. (Exhibit to PSI's September 30,
1996, Form 10-Q in File No. 1-3543.)
C-45 *Loan Agreement between PSI and the City of Princeton,
Indiana dated as of February 1, 1997. (Exhibit to
Cinergy's 1996 Form 10-K in File No. 1-11377.)
C-46 *Indenture dated November 15, 1996, between PSI and The Fifth
Third Bank, as Trustee. (Exhibit to Cinergy's 1996 Form 10-K in
File No. 1-11377.)
C-47 *First Supplemental Indenture (6.35% due 2006) dated November 15,
1996, between PSI and The Fifth Third Bank, as Trustee. (Exhibit
to Cinergy's 1996 Form 10-K in File No. 1-11377.)
C-48 *Second Supplemental Indenture (6.25% due 2005) dated December 15,
1996, between PSI and The Fifth Third Bank, as Trustee. (Exhibit
to Cinergy's 1996 Form 10-K in File No. 1-11377.)
C-49 *Third Supplemental Indenture dated as of March 15, 1998, between
PSI and the Fifth Third Bank, as Trustee (Exhibit to PSI's 1997
Form 10-K in File No. 1-3543)
C-50 *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-51 *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.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
C-52 *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-53 *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-54 *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-55 *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-56 *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-57 Original Indenture (First Mortgage Bonds) between Lawrenceburg and
Star Bank, N.A. dated as of March 1, 1955. (Not filed herewith,
pursuant to April 1996 discussion with the Chief Financial Analyst
of the SEC's Office of Public Utility Regulation.)
C-58 Seventh Supplemental Indenture between Lawrenceburg and
Star Bank, N.A. dated as of October 1, 1986. (See
preceding item.)
C-59 *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-60 *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. (Exhibit to Cinergy's Form
U5S filed May 1, 1997.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
D-2 Schedule detailing reallocation of 1996 taxes in accordance with
agreement filed as Exhibit D-1 (Filed pursuant to Rule 104(b).)
F-1 Consent of Independent Public Accountants.
F-2 Consolidating Financial Statements of Cinergy for 1997.
F-3 Consolidating Financial Statements of CG&E for 1997.
F-4 Consolidating Financial Statements of Investments for 1997.
(Filed pursuant to Rule 104(b).)
F-5 Consolidating Financial Statements of PSI for 1997.
F-6 Consolidating Financial Statements of Avon Energy for 1997.
(Filed pursuant to Rule 104(b).)
F-7 Financial Statements for Cadence for 1997. (Filed pursuant to
Rule 104(b).)
F-8 Financial Statements for Trigen-Cinergy for 1997. (Filed
pursuant to Rule 104(b).)
F-9 Financial Statements for Trigen-Cinergy Cincinnati for 1997.
(Filed pursuant to Rule 104(b).)
F-10 Item 6. Part III - Supplemental Information Regarding
Compensation and Security Ownership of Officers and Directors of
System Companies.
F-11 Classified plant accounts and related depreciation or
amortization reserve schedules included in the FERC Form
No. 1 of PSI. (Filed under cover of Form SE.)
F-12 Classified plant accounts and related depreciation or amortization
reserve schedules included in the FERC Form Nos. 1 and 2 of CG&E.
(Filed under cover of Form SE.)
F-13 Classified plant accounts and related depreciation or amortization
reserve schedules included in the FERC Form Nos. 1 and 2 of ULH&P.
(Filed under cover of Form SE.)
F-14 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). (Filed under
cover of Form SE.)
F-15 Classified plant accounts and related depreciation or amortization
reserve schedules included in the Annual Report of Lawrenceburg to
the IURC. (Filed under cover of Form SE.)
F-16 The FERC Form No. 2A for KO Transmission. (Filed under
cover of Form SE.)
<PAGE>
ITEM 10. EXHIBITS (Continued)
EXHIBIT
DESIGNATION NATURE OF EXHIBITS
F-17 The Annual Report of CoolCo to the Public Utilities
Commission of Ohio. (Filed under cover of Form SE.)
F-18 The Annual Report of Trigen-Cinergy Cincinnati to the
Public Utilities Commission of Ohio. (Filed under cover
of Form SE.)
G Financial Data Schedules for Cinergy and Subsidiaries. (Included
in electronic submission only.)
H Organizational chart showing relationship of PSI Energy Argentina,
Midlands, and Copperbelt to other system companies.
I-1 Audited Financial Statements of PSI Energy Argentina for the year
ended December 31, 1996.
I-2 Financial Statements for Midlands for the year ended December 31,
1997 (Filed pursuant to Rule 104(b).)
J Response to Item 9, Part I (c) for Midlands. (Filed pursuant to
Rule 104(b).)
<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.
By: /s/William L. Sheafer
William L. Sheafer
Vice President and Treasurer
Date: April 30, 1998
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 and a wholly owned subsidiary of PSI Energy, Inc.) as of
December 31, 1997 and 1996, and the related statements of income, changes in
common stock equity and cash flows for the years 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 audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide 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 PSI Energy Argentina, Inc. as
of December 31, 1997 and 1996, and the results of its operations and its cash
flows for the years then ended, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio,
January 27, 1998
<PAGE>
<TABLE>
<CAPTION>
PSI Energy Argentina, Inc.
Statements of Income
(dollars in thousands)
For the Year Ended
December 31
<S> <C> <C>
1997 1996
Revenues
Operator fee $ 169 $ 247
Consulting and engineering retainer 142 123
Dividends 824 376
Other 173 -
----------------- -----------------
1,308 746
Operation expenses 102 99
----------------- -----------------
Pre-tax income 1,206 647
Income taxes 453 106
----------------- -----------------
Net income $ 753 $ 541
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
<TABLE>
<CAPTION>
PSI Energy Argentina, Inc.
Balance Sheet
(dollars in thousands)
December 31
ASSETS 1997 1996
<S> <C> <C>
Current Assets
Accounts receivable from affiliated companies $ 1,916 $ 660
Prepayments and other 39 33
-------------- ------------
1,955 693
Other Assets
Investment in Distrilec Invesora, S.A., net 10,705 10,705
-------------- ------------
$ 12,660 $11,398
CAPITALIZATION
Common Stock Equity
Common stock - no par value;
authorized shares - 100,000,000;
outstanding shares - 100 in 1997 and 1996 $ - $ -
Paid-in capital 10,705 10,705
Retained earnings 1,294 541
-------------- ------------
11,999 11,246
Current Liabilities
Accounts payable to affiliated companies 661 -
Accrued taxes - 152
-------------- ------------
661 152
-------------- ------------
$ 12,660 $11,398
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
<TABLE>
<CAPTION>
PSI Energy Argentina, Inc.
Statements of Changes in Common Stock Equity
(dollars in thousands)
<S> <C>
Balance at December 31, 1995 $ 10,705
Retained earnings
Net income 541
-----------------
Balance at December 31, 1996 11,246
Retained earnings
Net income 753
-----------------
Balance at December 31, 1997 $ 11,999
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
<TABLE>
<CAPTION>
PSI Energy Argentina, Inc.
Statements of Cash Flows
(dollars in thousands)
For the Year Ended
December 31
1997 1996
<S> <C> <C>
Operating Activities
Net income $ 753 $ 541
Items providing (using) cash currently:
Changes in current assets/liabilities
Accounts receivable (1,256) (660)
Accounts payable 661 -
Accrued taxes (152) 152
Other items-net (6) (33)
----------------- -----------------
Net cash provided by (used in) operating activities - -
Net increase (decrease) in cash and temporary - -
cash investments
Cash and temporary investments at beginning of
period - -
----------------- -----------------
Cash and temporary investments at end of period $ - $ -
<FN>
The accompanying notes are an integral part of these financial statements.
</FN>
</TABLE>
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, 1997, PSI Energy Argentina holds a 2% 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 also acts as the operator of Edesur.
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 to others.
The Company has entered into an agreement with the other shareholders of
Distrilec regarding the distribution to the shareholders of the operator fees
earned by Distrilec. The term of this agreement extends through August 31, 2007.
The Argentine government had 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 Statement
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. As of December 31, 1997 and 1996, there were no deferred tax assets
or liabilities required or recorded.
Federal income taxes, computed by applying the statutory Federal income tax rate
to pre-tax income are reconciled to income tax expense reported in the
Statements of Income as follows:
1997 1996
(in thousands)
Statutory Federal income tax provision $422.2 $226.4
Increases (Reductions) in taxes resulting
from:
State income taxes (net of Federal benefit) 35.2 19.1
Change in valuation allowance - (139.5)
Other (4.7) -
------ ------
Income tax expense $452.7 $106.0
During 1996, the Company utilized all of its remaining net operating loss
carryforwards for both Federal and state tax purposes.
PSI Energy Argentina will participate in the filing of a consolidated Federal
income tax return with Cinergy, and other affiliated companies. 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) Consulting and Engineering Retainer The Company has entered into an
agreement with Edesur under which the Company may provide consulting and
engineering services to Edesur. Under this agreement, the Company receives
retainer fees, as well as project fees for any services provided. Through
December 31, 1997, the Company has not provided any services under the
agreement.
(f) Administrative, Management, and Support Services The Company receives
certain administrative, management, and support services from affiliate
companies. These services are immaterial and are not reflected in the financial
statements.
2. Commitments
The Company 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.
CERTIFICATE OF FORMATION
OF
CADENCE NETWORK LLC
The undersigned, being natural persons of age eighteen years or more,
acting as organizers of a limited liability company under the Delaware Limited
Liability Company Act (as the same may be amended from time to time, the "Act"),
adopt, pursuant to Section 18-201 of the Act, the following Certificate of
Formation for such limited liability company (the "Company"):
ARTICLE I
NAME
The name of the Company shall be: Cadence Network LLC.
ARTICLE II
REGISTERED OFFICE, REGISTERED AGENT
The initial registered office of the Company shall be: c/o The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware, or such other location as the Parties by mutual consent shall
determine. The initial registered agent of the Company shall be: The Corporation
Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or
such other location as the Parties by mutual consent shall determine. Either the
registered officer or the registered agent may be changed in the manner provided
by law.
ARTICLE III
PERIOD OF DURATION
The Company shall exist until dissolved according to law or by the
terms of the Company's Operating Agreement.
ARTICLE IV
POWERS
Except as restricted by this Certificate of Formation, the Company
shall have any may exercise all powers and rights which a limited liability
company may exercise legally pursuant to the Act.
ARTICLE V
AMENDMENTS
The Company reserves the right to amend its Certificate of Formation
from time to time in accordance with the Act, provided, that the unanimous
approval of the members of the Company to such amendment has been duly obtained.
ARTICLE VI
ADOPTION OF OPERATING AGREEMENT
The initial Operating Agreement of the Company (the "Operating
Agreement") shall be adopted by its members. The Operating Agreement may contain
any provisions for the regulation and management of the affairs of the Company
not inconsistent with law or this Certificate of Formation.
The undersigned does hereby certify, make and acknowledge this
Certificate of Formation on this 2nd day of September, 1997.
CINERGY-CADENCE, INC.
--------------------------------
William J. Grealis
President
NEW CENTURY-CADENCE, INC.
-------------------------------
Wayne H. Brunetti
Chief Executive Officer
PROGRESS HOLDINGS, INC.
By: ___________________________
James V. Smallwood
Vice President
CERTIFICATE OF FORMATION
OF
CINCAP IV, LLC
The undersigned, being a natural person of age eighteen years or more,
acting as organizer of a limited liability company under the Delaware Limited
Liability Company Act (as the same may be amended from time to time, the "Act"),
adopts, pursuant to Section 18-201 of the Act, the following Certificate of
Formation for such limited liability company (the "Company"):
ARTICLE I
NAME
The name of the Company shall be: CinCap IV, LLC.
ARTICLE II
REGISTERED OFFICE, REGISTERED AGENT
The initial registered office of the Company shall be: c/o The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware, or such other location as the Parties by mutual consent shall
determine. The initial registered agent of the Company shall be: c/o The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware, or such other location as the
Parties by mutual consent shall determine. Either the registered officer or the
registered agent may be changed in the manner provided by law.
ARTICLE III
PERIOD OF DURATION
The Company shall exist until dissolved according to law or by the
terms of the Company's Operating Agreement.
ARTICLE IV
POWERS
Except as restricted by this Certificate of Formation, the Company
shall have any may exercise all powers and rights which a limited liability
company may exercise legally pursuant to the Act.
The undersigned does hereby certify, make and acknowledge this
Certificate of Formation on this 3rd day of December, 1997.
CINERGY CAPITAL & TRADING, INC.
By: ________________________________
J. Wayne Leonard
President
ARTICLES OF INCORPORATION
OF
CINERGY ENGINEERING, 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 Cinergy Engineering,
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 Eight Hundred and Fifty (850), 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 authorized such transaction, with like
force and effect as if he 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 this Corporation, may be adopted at a meeting of
shareholders held for such purpose by the affirmative note 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 executive these Articles this
28th day of March, 1997.
- -------------------
Rosemary E. Grieme
Incorporator
REGULATIONS
OF
CINERGY ENGINEERING,
INC.
Adopted: March 28, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Offices
Section 1.1. Offices.
ARTICLE II
Shareholders' Meetings
Section 2.1. Annual Meeting.
Section 2.2. Notice of Annual Meeting.
Section 2.3. Special Meetings.
Section 2.4. Notice of Special Meeting.
Section 2.5. Waiver of Notice.
Section 2.6. Quorum.
Section 2.7. Voting.
Section 2.8. Written Consent of Shareholders in Lieu of
Meeting.
ARTICLE III
Directors
Section 3.1. Duties and Powers.
Section 3.2. Number and Election of Directors.
Section 3.3. Vacancies.
Section 3.4. Meetings.
Section 3.5. Quorum.
Section 3.6. Actions of Board.
Section 3.7. Meetings by Means of Conference Telephone.
Section 3.8. Committees.
Section 3.9. Compensation.
Section 3.10. Contracts and Transactions Involving
Directors.
ARTICLE IV
Officers
Section 4.1. Officers.
Section 4.2. Appointment, Terms, and Vacancies.
Section 4.3. Chairman of the Board.
Section 4.4. Chief Executive Officer.
Section 4.5. President.
Section 4.6. Vice Presidents.
Section 4.7(a). Secretary.
Section 4.7(b). Assistant Secretaries.
Section 4.8. Treasurer.
Section 4.9. Comptroller.
Section 4.10. Other Officers.
<PAGE>
ARTICLE V
Capital Stock
Section 5.1. Form and Execution of Certificates.
Section 5.2. Signatures.
Section 5.3. Lost Certificates.
Section 5.4. Transfers.
Section 5.5. Record Date.
Section 5.6. Beneficial Ownership Rights.
ARTICLE VI
Notices
Section 6.1. Notices.
Section 6.2. Waivers of Notice.
ARTICLE VII
General Provisions
Section 7.1. Dividends.
Section 7.2. Disbursements.
Section 7.3. Voting Securities Owned by the Corporation.
Section 7.4. Fiscal Year.
Section 7.5. Corporate Seal.
ARTICLE VIII
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or
Proceedings Other than Those By or in the
Right of the Corporation.
Section 8.2. Power to Indemnify in Actions, Suits or
Proceedings By or in the Right of the
Corporation.
Section 8.3. Authorization of Indemnification.
Section 8.4. Good Faith Defined.
Section 8.5. Indemnification by a Court.
Section 8.6. Expenses Payable in Advance.
Section 8.7. Nonexclusivity of Indemnification and
Advancement of Expenses.
Section 8.8. Insurance.
Section 8.9. Certain Definitions.
Section 8.10. Survival of Indemnification and Advancement
of Expenses.
Section 8.11. Limitation on Indemnification.
Section 8.12. Indemnification of Employees and Agents.
ARTICLE IX
Amendments
Section 9.1. Amendments.
ARTICLE X
Emergency Regulations
Section 10.1. Emergency Regulations.
<PAGE>
Regulations
Of
Cinergy Engineering, Inc.
(hereinafter called the "Corporation")
ARTICLE I
Offices
Section 1.1. Offices. The principal office of the Corporation shall be at 139
East Fourth Street, Cincinnati, Ohio 45202 (to the extent not otherwise provided
in the Corporation's Articles of Incorporation). The Corporation may have such
other offices at such other places as the Board of Directors may from time to
time determine, or as the business of the Corporation may require.
ARTICLE II
Shareholders' Meetings
Section 2.1. Annual Meeting. The annual meeting of the shareholders may be held
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 2.2. 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 2.3. Special Meetings. Special meetings of the shareholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer, or
the 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 the
express percentage, as provided by statute, 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 2.4. 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 twenty (20) days and not more than forty-five
(45) days prior to the meeting.
Section 2.5. 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 2.6. Quorum. The holders of shares entitling them to exercise a majority
of the voting power, or, if the vote is to be taken by classes, the holders of
shares of each class entitling them to exercise a majority of the voting power
of that class, present in person or by proxy at any meeting of the shareholders,
unless otherwise specified by statute, 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 (unless the meeting has been adjourned
for over thirty days), other than by announcement at the meeting at which such
adjournment is taken, until a quorum is 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 originally called.
Section 2.7. Voting. At each meeting of the shareholders, except as otherwise
provided by statute or the Articles of Incorporation, every holder of record of
stock of the class or classes 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 later than such time as expressly
provided by statute, 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 as expressly provided by statute. (e.g., either the
date of the meeting, the date next proceeding the day of the meeting, or any
such similar governing time frame). Cumulative voting shall be permitted only as
expressly provided 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 as
hereinbefore stated as expressly provided by statute) 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 2.8. Written Consent of Shareholders in Lieu of Meeting. Any action
required or permitted by statute, the Articles of Incorporation, or these
Regulations, to be taken at any annual or special meeting of shareholders of the
Corporation, may be taken without a meeting, without prior notice and without a
vote, if a written consent in lieu of a meeting, setting forth the action so
taken, shall be signed by all the shareholders entitled to vote thereon. Any
such written consent may be given by one or any number of substantially
concurrent written instruments of substantially similar tenor signed by such
shareholders, in person or by attorney or proxy duly appointed in writing, and
filed with the records of the Corporation. Any such written consent shall be
effective as of the effective date thereof as specified therein.
ARTICLE III
Directors
Section 3.1. Duties and Powers. The business and affairs 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, the Articles of Incorporation, or these
Regulations, directed or required to be exercised or done by the shareholders.
Section 3.2. Number and Election of Directors. The Board of Directors shall
consist of not less than three nor more than fifteen members, the exact number
of which shall be fixed by the Board of Directors. Directors shall be elected
annually by shareholders at their annual meeting, in a manner consistent with
statute and as provided in Article II, Section 2.8 of these Regulations, and
each director so elected shall hold office until his/her successor is duly
elected and qualifies, or until his/her earlier resignation or removal. Any
director may resign at any time upon notice to the Corporation. Directors need
not be shareholders and shall fulfill the residency requirements as and if
provided by statute. Any director may be removed at any time with or without
cause by a majority vote of the shareholders, unless otherwise provided by
statute.
Section 3.3. Vacancies. Vacancies and newly created directorships, resulting
from any increase in the authorized number of directors, may be filled by a
majority of the directors then in office, and the directors so chosen shall hold
office for the unexpired term of the predecessor and/or until the next annual
meeting of shareholders, and until their successors are duly elected and
qualify, or until their earlier resignation or removal.
Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at
such time, place, and upon such notice as the Board of Directors may from time
to time determine. Special meetings of the Board of Directors may be called by
the Chairman of the Board, the Chief Executive Officer, the President, or by
members of the board (the express percentage of the latter as minimally provided
for by statute). 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 3.5. Quorum. Except as may be otherwise specifically provided for by
statute, the Articles of Incorporation or these Regulations, 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 3.6. Actions of Board. Unless otherwise provided by the Articles of
Incorporation of the Corporation or these Regulations, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee(s) thereof, may be taken without a meeting, if all the members of the
Board of Directors, or of such committee(s), as the case may be, consent thereto
in writing, and the writing(s) is filed with the minutes of proceedings of the
Board of Directors, or of such committee(s), of the Corporation. Any such
written consent to action of the Board of Directors, or of such committee(s),
shall be effectuated by the signature of the member lastly consenting thereto in
writing, unless the consent otherwise specified a prior or subsequent effective
date.
Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation of the Corporation or these
Regulations, members of the Board of Directors, or any committee(s) thereof, may
participate in a meeting of the Board of Directors, or of such committee(s), as
the case may be, 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 3.7 shall
constitute presence in person at such meeting.
Section 3.8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate, from time to time as they
may see fit, one or more committees, each such committee to consist of three or
more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any such 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/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 absent or disqualified
member. Any committee, to the extent allowed by statute 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 3.9. Compensation. 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 reasonable
compensation, which may include pension, disability and death benefits, as may
be determined from time to time by the Board of Directors. Reasonable
compensation may also be paid to any person other than a director officially
called to attend any such meeting.
Section 3.10. Contracts and Transactions Involving Directors. No contract or
transac tion 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: (i) the material facts as to
his/her 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/her or their relationship or interest and as
to the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; 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
shareholders. 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 4.1. Officers. The officers of the Corporation shall consist of a
President, a Secretary, and a Treasurer, and may consist of a Chairman of the
Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents,
one or more Assistant Secretaries, and such other officers as the board shall
from time to time deem necessary. Any number of offices may be held by the same
person, unless otherwise prohibited by statute, the Articles of Incorporation,
or these Regulations.
Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its
first meeting held after each annual meeting of shareholders of the Corporation
(i.e., the annual organization meeting of the Board of Directors), shall appoint
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, and such officers shall hold office until their
successors are chosen and shall qualify, or until their earlier resignation or
removal from office. Any officer appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the board. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one,
shall be a director and shall preside at all meetings of the Board of Directors
and, in the absence or incapacity of the Chief Executive Officer and the
President, meetings of the shareholders, and shall, subject to the board's
direction and control, be the board's representative and medium of
communication, and shall have the general powers and duties as are incident to
the office of Chairman of the Board of a corporation.
Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be
one, shall preside at all meetings of the shareholders and, in the absence or
incapacity of the Chairman of the Board, meetings of the Board of Directors. The
Chief Executive Officer shall from time to time 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. Where the offices of Chief Executive
Officer and President are held by different individuals, the President will
report directly to the Chief Executive Officer.
Section 4.5. President. The President shall be the chief operating officer of
the Corporation, and 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, or of any committee(s) thereof, are carried fully into
effect, and shall have the general powers and duties of supervision and
management as are incident to the office of President of a corporation. In the
absence or incapacity of the Chief Executive Officer, the President also shall
be the chief executive officer of the Corporation.
Section 4.6. 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 (including by the Chairman of the Board), the Chief Executive Officer,
or the President shall exercise the powers and duties of the President.
Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board
of Directors and of the shareholders of the Corporation, and act as clerk
thereof, and record all votes and the minutes of all proceedings in a book to be
kept for that purpose, shall record all written business transactions, shall
perform like duties for the standing committees when required, and shall have
the general powers and duties as are incident to the office of Secretary of a
corporation. The Secretary shall give, or cause to be given, proper notice of
all meetings of the shareholders and of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, or the
President. The Secretary shall have custody of the seal, if there be one, of the
Corporation and the Secretary or any Assistant Secretary, 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/her signature). The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by statute to be kept or filed are properly kept or filed, as the case
may be.
Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in
his or her absence or incapacity 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 (including by the Chairman of the Board), the
Chief Executive Officer, the President, or the Secretary.
Section 4.8. 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 valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors, shall disburse the funds of the Corporation as may be ordered by the
Board of Directors (including by the Chairman of the Board), the Chief Executive
Officer, or the President, taking proper vouchers therefor, and shall render to
the President, the Chief Executive Officer, the Chairman of the Board, and/or
directors at any meeting 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, and
shall have the general powers and duties as are incident to the office of
Treasurer of a corporation.
If required by the Board of Directors, the Treasurer shall give the Corporation
a bond in a form and in such sum with surety as shall be satisfactory to the
Board of Directors for the faithful performance of his or her duties as
Treasurer and for the restoration to the Corporation, in the case of his or her
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his or her possession, or
under his or her control, and belonging to the Corporation. The Treasurer shall
perform such other duties as may be prescribed by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, or the
President.
Section 4.9. Comptroller. The Comptroller shall have control over all accounts
and records of the Corporation pertaining to moneys, properties, materials and
supplies, and shall have executive direction over the bookkeeping and accounting
functions and shall have the general powers and duties as are incident to the
office of comptroller of a corporation. The Comptroller shall perform such other
duties as may be prescribed by the Board of Directors (including by the Chairman
of the Board), the Chief Executive Officer, the President, or a Vice President.
Section 4.10. Other Officers. Such other officers of the Corporation as the
Board of Directors may appoint shall perform such duties and have such powers as
from time to time may be assigned to them by the board. The Board of Directors
may delegate to any other officer of the Corporation the power to appoint such
other officers and to prescribe their respective duties and powers.
ARTICLE V
Capital Stock
Section 5.1. 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 statute and the Articles of Incorporation, as shall be
approved by the Board of Directors. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation,
by (i) either the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and (ii) by any one of the following officers: 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 shares and the date of issue, shall be entered on the Corporation's
books.
Section 5.2. Signatures. Any or all of the signatures on a certificate may be a
facsimile thereof. 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/she were such officer, transfer agent or registrar at the date of
issue.
Section 5.3. 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/her 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 certificate alleged to have
been lost, stolen or destroyed.
Section 5.4. Transfers. The capital stock of the Corporation shall be
transferable in the manner provided by statute and in these Regulations.
Transfers of shares shall be made on the books of the Corporation only by the
person named in the certificate or by his/her attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be
canceled before a new certificate shall be issued.
Section 5.5. Record Date. In order that the Corporation may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or enti tled 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 shareholders of record entitled to notice of or to
vote at a meeting of shareholders 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 5.6. Beneficial Ownership Rights. 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
statute.
ARTICLE VI
Notices
Section 6.1. Notices. Whenever written notice is required by statute, the
Articles of Incorporation, or these Regulations to be given to any director,
member of a committee, or shareholder, such notice may be given by mail,
addressed to each such person, at his/her 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, or as otherwise provided by statute. Written notice may also be
given personally or by telegram, telex or cable.
Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the
Articles of Incorporation, or these Regulations to be given to any director,
member of a committee, or shareholder, 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 7.1. Dividends. Dividends upon the capital stock of the Corporation,
subject to any provision imposed by the Articles of Incorporation, may be
declared by the Board of Directors at any regular or special meeting, or by
written consent to the action of the board without such meeting(s), 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 7.2. 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 7.3. 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 Chief Executive Officer, the President, any
Vice President, the Secretary, or any Assistant Secretary, 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 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the
first day of January and end on the thirty-first day of December each year.
Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall
have inscribed thereon the name of the Corporation, the year of its
incorporation, the words "Corporate Seal" and "Ohio", and any such other emblem
or device as approved by the Board of Directors. 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
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than
Those By or in the Right of the Corporation. Subject to Section 8.3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
to 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/she 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/her in
connection with such action, suit or proceeding, if he/she acted in good faith
and in a manner he/she 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/her 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/she 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/her conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the
Right of the Corporation. Subject to Section 8.3 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 threat ened, 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/she 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 expenses (including attorneys' fees) actually and reasonably incurred by
him/her in connection with the defense or settlement of such action or suit if
he/she acted in good faith and in a manner he/she 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 for negligence or
misconduct in the performance of his/her duty to the Corporation, unless and
only to the extent that 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 shall deem proper.
Section 8.3. 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/she has met
the applicable standard of conduct set forth in Section 8.1 or Section 8.2 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 shareholders. 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/she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him/her in connection
therewith, without the necessity of authorization in the specific case.
Any determination made by the disinterested directors or by independent legal
counsel under 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 Section 8.1 and 8.2 of this Article VIII, and, within ten days after
receipt of such notification, such persons shall have the right to petition the
court (at courts' discretion) in which such action or suit was brought to review
the reasonableness of such determination.
Section 8.4. Good Faith Defined. For purposes of any determination under Section
8.3 of this Article VIII, a person shall be deemed to have acted in good faith
and in a manner he/she 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/her conduct was
unlawful, if his/her action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him/her 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 8.4 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 8.4 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 8.1 or 8.2 of this Article VIII, as
the case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 8.3 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 Ohio
for indemnification to the extent otherwise permissible under Sections 8.1 and
8.2 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/she has met the applicable standards of
conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may
be. Neither a contrary determination in the specific case under Section 8.3 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 8.5 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 8.6. Expenses Payable in Advance. Expenses incurred 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/she is not entitled to be indemnified by the Corporation
as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement 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 other provision of these Regulations, or similarly entitled under any
agreement, contract, vote of shareholders or disinterested directors, or
pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his/her 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 8.1
and 8.2 of this Article VIII shall be made to the fullest extent permitted by
statute. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 8.1 or 8.2 of
this Article VIII, but whom the Corporation has the power or obligation to
indemnify under the provisions of statute of the State of Ohio, or otherwise.
Section 8.8. 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/her and incurred by him/her in any
such capacity, or arising out of his/her status as such, whether or not the
Corporation would have the power or the obligation to indemnify him/her against
such liability under the provisions of this Article VIII.
Section 8.9. 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/she 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/she reasonably believed to be in the best interests 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 8.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses 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 8.11. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 8.5 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.
The Corporation shall indemnify a director who was wholly successful, on merits
or otherwise, in the defense of any proceedings to which he/she was a party
because he/she was a director of the Corporation against reasonable expenses
incurred by him/her in connection with the proceeding.
Section 8.12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide
rights to indem nification 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 9.1. Amendments. These Regulations may be altered, amended or repealed,
in whole or in part, or new Regulations may be adopted: (i) by the affirmative
vote of a majority of the holders of record of the outstanding shares entitled
to vote thereon, or by the written consent of the holders of record of a
two-thirds majority of the outstanding shares entitled to vote thereon, except
as such alteration, amendment or repeal by any vote or written consent of the
shareholders is otherwise expressly prohibited by statute; or (ii) by a majority
vote of the Board of Directors, or by unanimous written consent of the board,
except as such alteration, amendment or repeal by any vote or action of the
board is otherwise expressly prohibited by statute.
ARTICLE X
Emergency Regulations
Section 10.1. Emergency By-Laws. The Emergency Regulations 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 shareholders, or during any nuclear or atomic disaster, or during the
existence of any catastrophe, or 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 provision to the contrary in
the preceding Regulations, in the Articles of Incorporation, or in the statute.
To the extent not inconsistent with the provisions of this Section 10.1, the
Regulations of the Corporation shall remain in effect during any emergency, and
upon its termination, the Emergency Regulations shall cease to be operative. Any
amendments to these Emergency Regulations may make any further or different
provision that may be practical and necessary for the circumstance 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 or conference call shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any 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 the
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, the directors for such meeting.
No officer, director or employee acting in accordance with any provision of
these Emergency Regulations shall be liable except for willful misconduct.
These Emergency Regulations shall be subject to alteration, amendment or repeal
by the further actions of the Board of Directors or shareholders of the
Corporation.
CERTIFICATE OF INCORPORATION
OF
CINERGY INVESTMENTS MPI, INC.
FIRST: The name of the Corporation is Cinergy Investments MPI,
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").
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 1000 shares of Common Stock, each having a par
value of one penny ($.01).
FIFTH: The name and mailing address of the Sole Incorporator is
as follows:
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 ByLaws
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 GCL 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 ByLaws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By0Laws 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 designed 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 names, for
the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and certifying that this is may act and deed and
the facts herein stated are true, and accordingly have hereunto set my hand this
4th day of September, 1997.
- -------------------
Deborah M. Ruesch
Sole Incorporator
<PAGE>
ACTION OF THE SOLE INCORPORATOR
OF
CINERGY INVESTMENTS MPI, INC.
The undersigned, being the sole incorporator of the Cinergy Investments
MPI, Inc., a Delaware corporation (the "Corporation"), hereby adopts the
following resolutions in lieu of a meeting, pursuant to Section 108(c) of the
General Corporation Law of the State of Delaware:
RESOLVED, that the proposed form of By-Laws is hereby adopted as and
for the By-Laws of the Corporation.
RESOLVED, that the number of directors constituting the Board of
Directors is hereby fixed at three and that the following persons are hereby
elected as directors of the corporation to serve until the first Annual Meeting
of Stockholders and until their successors shall be elected and duly qualified:
James E. Rogers
Cheryl M. Foley
Madeleine W. Ludlow
RESOLVED, that the Board of Directors of the Corporation is hereby authorized
and directed to issue from time to time the shares of capital stock of the
Corporation, now or hereafter authorized, wholly or partly for cash, for labor
done, or services performed, or for personal property, or real property or
leases thereof, received for the use and lawful purposed of the Corporation, or
for any consideration, permitted by law, as in the discretion of the Board of
Directors may seem for the best interest of the Corporation.
IN WITNESS WHEREOF, the undersigned has duly executed this instrument
this 3rd day of September, 1997.
- -------------------
Deborah M. Reusch
Sole Incorporator
BY-LAWS
OF
CINERGY GLOBAL
POWER, INC.
Adopted: September 3, 1997
Amended: February 13, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Offices
Section 1.1. Offices.
ARTICLE II
Stockholders' Meetings
Section 2.1. Annual Meeting.
Section 2.2. Notice of Annual Meeting.
Section 2.3. Special Meetings.
Section 2.4. Notice of Special Meeting.
Section 2.5. Waiver of Notice.
Section 2.6. Quorum.
Section 2.7. Voting.
Section 2.8. Written Consent of Stockholders in Lieu of
Meeting.
ARTICLE III
Directors
Section 3.1. Duties and Powers.
Section 3.2. Number and Election of Directors.
Section 3.3. Vacancies.
Section 3.4. Meetings.
Section 3.5. Quorum.
Section 3.6. Actions of Board.
Section 3.7. Meetings by Means of Conference Telephone.
Section 3.8. Committees.
Section 3.9. Compensation.
Section 3.10. Contracts and Transactions Involving
Directors.
ARTICLE IV
Officers
Section 4.1. Officers.
Section 4.2. Appointment, Terms, and Vacancies.
Section 4.3. Chairman of the Board.
Section 4.4. Chief Executive Officer.
Section 4.5. President.
Section 4.6. Vice Presidents.
Section 4.7(a). Secretary.
Section 4.7(b). Assistant Secretaries.
Section 4.8. Treasurer.
Section 4.9. Comptroller.
Section 4.10. Other Officers.
<PAGE>
ARTICLE V
Capital Stock
Section 5.1. Form and Execution of Certificates.
Section 5.2. Signatures.
Section 5.3. Lost Certificates.
Section 5.4. Transfers.
Section 5.5. Record Date.
Section 5.6. Beneficial Ownership Rights.
ARTICLE VI
Notices
Section 6.1. Notices.
Section 6.2. Waivers of Notice.
ARTICLE VII
General Provisions
Section 7.1. Dividends.
Section 7.2. Disbursements.
Section 7.3. Voting Securities Owned by the Corporation.
Section 7.4. Fiscal Year.
Section 7.5. Corporate Seal.
ARTICLE VIII
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or
Proceedings Other than Those By or in the
Right of the Corporation.
Section 8.2. Power to Indemnify in Actions, Suits or
Proceedings By or in the Right of the
Corporation.
Section 8.3. Authorization of Indemnification.
Section 8.4. Good Faith Defined.
Section 8.5. Indemnification by a Court.
Section 8.6. Expenses Payable in Advance.
Section 8.7. Nonexclusivity of Indemnification and
Advancement of Expenses.
Section 8.8. Insurance.
Section 8.9. Certain Definitions.
Section 8.10. Survival of Indemnification and Advancement
Of Expenses.
Section 8.11. Limitation on Indemnification.
Section 8.12. Indemnification of Employees and Agents.
ARTICLE IX
Amendments
Section 9.1. Amendments.
ARTICLE X
Emergency By-Laws
Section 10.1. Emergency By-Laws.
<PAGE>
By-Laws
Of
Cinergy Global Power, Inc.
(hereinafter called the "Corporation")
ARTICLE I
Offices
Section 1.1. Offices. The principal office of the Corporation
shall be at 139 East Fourth Street, Cincinnati, Ohio 45202 (to the extent not
otherwise provided in the Corporation's Certificate of Incorporation). The
Corporation may have such other offices at such other places as the Board of
Directors may from time to time determine, or as the business of the Corporation
may require.
ARTICLE II
Stockholders' Meetings
Section 2.1. Annual Meeting. The annual meeting of the stockholders may
be held 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 2.2. 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 forty-five (45) days prior to the meeting.
Section 2.3. Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman of the Board, the Chief Executive Officer,
or the 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
the express percentage, as provided by statute, 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 2.4. 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, at least twenty (20) days and not more
than forty-five (45) days prior to the meeting.
Section 2.5. Waiver of Notice. Notice of the time, place and purpose of
any meeting of stockholders may be waived by the written assent of every
stockholder entitled to notice, filed with or entered upon the records of the
meeting, either before or after the holding thereof.
Section 2.6. Quorum. The holders of shares entitling them to exercise a
majority of the voting power, or, if the vote is to be taken by classes, the
holders of shares of each class entitling them to exercise a majority of the
voting power of that class, present in person or by proxy at any meeting of the
stockholders, unless otherwise specified by statute, shall constitute a quorum.
If, however, at any meeting of the stockholders, a quorum shall fail to
attend in person or by proxy, a majority in interest of the stockholders
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 (unless the meeting
has been adjourned for over thirty days), other than by announcement at the
meeting at which such adjournment is taken, until a quorum is 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 originally called.
Section 2.7. Voting. At each meeting of the stockholders, except as
otherwise provided by statute or the Certificate of Incorporation, every holder
of record of stock of the class or classes 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 stockholder and bearing a date, not later than such
time as expressly provided by statute, 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 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 as expressly provided by statute. (e.g., either
the date of the meeting, the date next proceeding the day of the meeting, or any
such similar governing time frame). Cumulative voting shall be permitted only as
expressly provided by statute.
At any meeting of stockholders, a list of stockholders 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 as
hereinbefore stated as expressly provided by statute) 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.
Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any
action required or permitted by statute, the Certificate of Incorporation, or
these By-Laws, 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 written consent in lieu of a meeting, setting forth the
action so taken, shall be signed by all the stockholders entitled to vote
thereon. 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 records of the Corporation. Any such written consent
shall be effective as of the effective date thereof as specified therein.
ARTICLE III
Directors
Section 3.1. Duties and Powers. The business and affairs 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, the Certificate of Incorporation, or
these By-Laws, directed or required to be exercised or done by the shareholders.
Section 3.2. Number and Election of Directors. The Board of Directors shall
consist of not less than three nor more than fifteen members, the exact number
of which shall be fixed by the Board of Directors. Directors shall be elected
annually by stockholders at their annual meeting, in a manner consistent with
statute and as provided in Article II, Section 2.8 of these By-Laws, and each
director so elected shall hold office until his/her successor is duly elected
and qualifies, or until his/her earlier resignation or removal. Any director may
resign at any time upon notice to the Corporation. Directors need not be
stockholders and shall fulfill the residency requirements as and if provided by
statute. Any director may be removed at any time with or without cause by a
majority vote of the stockholders, unless otherwise provided by statute.
Section 3.3. Vacancies. Vacancies and newly created directorships,
resulting from any increase in the authorized number of directors, may be filled
by a majority of the directors then in office, and the directors so chosen shall
hold office for the unexpired term of the predecessor and/or until the next
annual meeting of stockholders, and until their successors are duly elected and
qualify, or until their earlier resignation or removal.
Section 3.4. Meetings. Regular meetings of the Board of Directors may
be held at such time, place, and upon such notice as the Board of Directors may
from time to time determine. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the Chief Executive Officer, the President,
or by members of the board (the express percentage of the latter as minimally
provided for by statute). 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 3.5. Quorum. Except as may be otherwise specifically provided
for by statute, 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 3.6. Actions of Board. Unless otherwise provided by the
Certificate of Incorporation of the Corporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee(s) thereof, may be taken without a meeting, if all the members
of the Board of Directors, or of such committee(s), as the case may be, consent
thereto in writing, and the writing(s) is filed with the minutes of proceedings
of the Board of Directors, or of such committee(s), of the Corporation. Any such
written consent to action of the Board of Directors, or of such committee(s),
shall be effectuated by the signature of the member lastly consenting thereto in
writing, unless the consent otherwise specified a prior or subsequent effective
date.
Section 3.7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation of the Corporation or
these By-Laws, members of the Board of Directors, or any committee(s) thereof,
may participate in a meeting of the Board of Directors, or of such committee(s),
as the case may be, 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 3.7 shall
constitute presence in person at such meeting.
Section 3.8. Committees. The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors, designate, from time to time as
they may see fit, one or more committees, each such committee to consist of
three or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any such 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/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 absent or disqualified
member. Any committee, to the extent allowed by statute 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 3.9. Compensation. 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 reasonable
compensation, which may include pension, disability and death benefits, as may
be determined from time to time by the Board of Directors. Reasonable
compensation may also be paid to any person other than a director officially
called to attend any such meeting.
Section 3.10. Contracts and Transactions Involving Directors. No
contract or transac tion 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: (i) the
material facts as to his/her 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/her 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 4.1. Officers. The officers of the Corporation shall consist of
a President, a Secretary, and a Treasurer, and may consist of a Chairman of the
Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents,
one or more Assistant Secretaries, and such other officers as the board shall
from time to time deem necessary. Any number of offices may be held by the same
person, unless otherwise prohibited by statute, the Certificate of
Incorporation, or these By-Laws.
Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors,
at its first meeting held after each annual meeting of stockholders of the
Corporation (i.e., the annual organization meeting of the Board of Directors),
shall appoint 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, and such officers shall hold office
until their successors are chosen and shall qualify, or until their earlier
resignation or removal from office. Any officer appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the board. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
Section 4.3. Chairman of the Board. The Chairman of the Board, if there be
one, shall be a director and shall preside at all meetings of the Board of
Directors and, in the absence or incapacity of the Chief Executive Officer and
the President, meetings of the stockholders, and shall, subject to the board's
direction and control, be the board's representative and medium of
communication, and shall have the general powers and duties as are incident to
the office of Chairman of the Board of a corporation.
Section 4.4. Chief Executive Officer. The Chief Executive Officer, if
there be one, shall preside at all meetings of the stockholders and, in the
absence or incapacity of the Chairman of the Board, meetings of the Board of
Directors. The Chief Executive Officer shall from time to time 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. Where the offices of
Chief Executive Officer and President are held by different individuals, the
President will report directly to the Chief Executive Officer.
Section 4.5. President. The President shall be the chief operating
officer of the Corporation, and 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, or of any committee(s) thereof, are
carried fully into effect, and shall have the general powers and duties of
supervision and management as are incident to the office of President of a
corporation. In the absence or incapacity of the Chief Executive Officer, the
President also shall be the chief executive officer of the Corporation.
Section 4.6. 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 (including by the Chairman of the Board), the Chief Executive Officer,
or the President shall exercise the powers and duties of the President.
Section 4.7(a). Secretary. The Secretary shall attend all meetings of
the Board of Directors and of the stockholders of the Corporation, and act as
clerk thereof, and record all votes and the minutes of all proceedings in a book
to be kept for that purpose, shall record all written business transactions,
shall perform like duties for the standing committees when required, and shall
have the general powers and duties as are incident to the office of Secretary of
a corporation. The Secretary shall give, or cause to be given, proper notice of
all meetings of the stockholders and of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, or the
President. The Secretary shall have custody of the seal, if there be one, of the
Corporation and the Secretary or any Assistant Secretary, 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/her signature). The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by statute to be kept or filed are properly kept or filed, as the case
may be.
Section 4.7(b). Assistant Secretaries. At the request of the Secretary,
or in his or her absence or incapacity 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 (including by the Chairman of the Board), the
Chief Executive Officer, the President, or the Secretary.
Section 4.8. 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 valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors, shall disburse the funds of the Corporation as may be ordered by the
Board of Directors (including by the Chairman of the Board), the Chief Executive
Officer, or the President, taking proper vouchers therefor, and shall render to
the President, the Chief Executive Officer, the Chairman of the Board, and/or
directors at any meeting of the board, or whenever they may require it, and to
the annual meeting of the stockholders, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation, and
shall have the general powers and duties as are incident to the office of
Treasurer of a corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond in a form and in such sum with surety as shall
be satisfactory to the Board of Directors for the faithful performance of his or
her duties as Treasurer and for the restoration to the Corporation, in the case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession, or under his or her control, and belonging to the Corporation. The
Treasurer shall perform such other duties as may be prescribed by the Board of
Directors (including by the Chairman of the Board), the Chief Executive Officer,
or the President.
Section 4.9. Comptroller. The Comptroller shall have control over all
accounts and records of the Corporation pertaining to moneys, properties,
materials and supplies, and shall have executive direction over the bookkeeping
and accounting functions and shall have the general powers and duties as are
incident to the office of comptroller of a corporation. The Comptroller shall
perform such other duties as may be prescribed by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, the
President, or a Vice President.
Section 4.10. Other Officers. Such other officers of the Corporation as
the Board of Directors may appoint shall perform such duties and have such
powers as from time to time may be assigned to them by the board. The Board of
Directors may delegate to any other officer of the Corporation the power to
appoint such other officers and to prescribe their respective duties and powers.
ARTICLE V
Capital Stock
Section 5.1. 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 statute and the Certificate of Incorporation, as
shall be approved by the Board of Directors. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation, by (i) either the Chairman of the Board, the Chief Executive
Officer, the President or a Vice President and (ii) by any one of the following
officers: 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 shares and the date of issue, shall be
entered on the Corporation's books.
Section 5.2. Signatures. Any or all of the signatures on a certificate
may be a facsimile thereof. 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/she were such officer, transfer agent or registrar at the date of
issue.
Section 5.3. 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/her 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 certificate alleged to have
been lost, stolen or destroyed.
Section 5.4. Transfers. The capital stock of the Corporation shall be
transferable in the manner provided by statute and in these By-Laws. Transfers
of shares shall be made on the books of the Corporation only by the person named
in the certificate or by his/her attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be canceled before a
new certificate shall be issued.
Section 5.5. 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 enti tled 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 5.6. Beneficial Ownership Rights. 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 statute.
ARTICLE VI
Notices
Section 6.1. Notices. Whenever written notice is required by statute,
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 each such person, at his/her 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, or as otherwise provided by statute. Written notice may also be
given personally or by telegram, telex or cable.
Section 6.2. Waivers of Notice. Whenever any notice is required by
statute, 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 7.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to any provision imposed by the Certificate of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting, or by written consent to the action of the board without such
meeting(s), 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 7.2. 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 7.3. 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 Chief Executive Officer, the President,
any Vice President, the Secretary, or any Assistant Secretary, 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 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January and end on the thirty-first day of December each year.
Section 7.5. Corporate Seal. The seal of the Corporation (if there be
one) shall have inscribed thereon the name of the Corporation, the year of its
incorporation, the words "Corporate Seal" and "Delaware", and any such other
emblem or device as approved by the Board of Directors. 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
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or
Proceedings Other than Those By or in the Right of the Corporation. Subject to
Section 8.3 of this Article VIII, the Corporation shall indemnify any person who
was or is a party to 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/she 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/her in connection with such action, suit or proceeding, if he/she acted
in good faith and in a manner he/she 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/her 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/she 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/her conduct was
unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in
the Right of the Corporation. Subject to Section 8.3 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 threat ened, 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/she 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 expenses (including attorneys' fees) actually and reasonably incurred by
him/her in connection with the defense or settlement of such action or suit if
he/she acted in good faith and in a manner he/she 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 for negligence or
misconduct in the performance of his/her duty to the Corporation, unless and
only to the extent that 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 shall deem proper.
Section 8.3. 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/she has met the applicable standard of conduct set forth in Section
8.1 or Section 8.2 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/she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him/her in
connection therewith, without the necessity of authorization in the specific
case.
Any determination made by the disinterested directors or by independent
legal counsel under 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 Section 8.1 and 8.2 of this Article VIII, and, within ten days
after receipt of such notification, such persons shall have the right to
petition the court (at courts' discretion) in which such action or suit was
brought to review the reasonableness of such determination.
Section 8.4. Good Faith Defined. For purposes of any determination under
Section 8.3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he/she 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/her conduct was
unlawful, if his/her action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him/her 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 8.4 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 8.4 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 8.1 or 8.2 of this Article VIII, as
the case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 8.3 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
8.1 and 8.2 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/she has met the applicable
standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as
the case may be. Neither a contrary determination in the specific case under
Section 8.3 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
8.5 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 8.6. Expenses Payable in Advance. Expenses incurred 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/she is not entitled to be indemnified by the Corporation
as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement 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 other provision of these By-Laws, or similarly entitled under any agreement,
contract, vote of stockholders or disinter ested directors, or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his/her 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 8.1 and
8.2 of this Article VIII shall be made to the fullest extent permitted by
statute. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 8.1 or 8.2 of
this Article VIII, but whom the Corporation has the power or obligation to
indemnify under the provisions of statute of the State of Delaware, or
otherwise.
Section 8.8. 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/her and incurred by
him/her in any such capacity, or arising out of his/her status as such, whether
or not the Corporation would have the power or the obligation to indemnify
him/her against such liability under the provisions of this Article VIII.
Section 8.9. 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/she 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/she reasonably believed to be in the best interests 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 8.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses 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 8.11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 8.5
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.
The Corporation shall indemnify a director who was wholly successful, on
merits or otherwise, in the defense of any proceedings to which he/she was a
party because he/she was a director of the Corporation against reasonable
expenses incurred by him/her in connection with the proceeding.
Section 8.12. Indemnification of Employees and Agents. The Corporation may,
to the extent authorized from time to time by the Board of Directors, provide
rights to indem nification 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 9.1. Amendments. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted: (i) by the
affirmative vote of a majority of the holders of record of the outstanding
shares entitled to vote thereon, or by the written consent of the holders of
record of a two-thirds majority of the outstanding shares entitled to vote
thereon, except as such alteration, amendment or repeal by any vote or written
consent of the stockholders is otherwise expressly prohibited by statute; or
(ii) by a majority vote of the Board of Directors, or by unanimous written
consent of the board, except as such alteration, amendment or repeal by any vote
or action of the board is otherwise expressly prohibited by statute.
ARTICLE X
Emergency By-Laws
Section 10.1. Emergency By-Laws. The Emergency By-Laws 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 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 provision to the contrary in
the preceding By-Laws, in the Certificate of Incorporation, or in the statute.
To the extent not inconsistent with the provisions of this Section 10.1, 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 to these Emergency By-Laws may make any further or different
provision that may be practical and necessary for the circumstance 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 or conference call shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any 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 the
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, the directors for such meeting.
No officer, director or employee acting in accordance with any provision of
these Emergency By-Laws shall be liable except for willful misconduct.
These Emergency By-Laws shall be subject to alteration, amendment or repeal
by the further actions of the Board of Directors or stockholders of the
Corporation.
THE COMPANIES LAW (1995 REVISION)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
CINERGY MPI I, INC.
1. The name of the Company is Cinergy MPI I, Inc.
2. The Registered Office of the Company shall be at the offices of Maples and
Calder, Attorneys-at-Law, Ugland House, P.O. Box 309, George Town, Grand Cayman,
Cayman Islands, British West Indies or at such other place as the Directors may
from time to time decide.
3. The objects for which the Company is established are unrestricted and shall
include, but without limitation, the following:
( i) (a) To carry on the business of a financial institution undertaking all
those business activities of a financial nature that do not require the Company
to be licenced to do so under Cayman Islands', or any other applicable, law to
act as promoters and entrepreneurs and to carry on business as financiers,
capitalists, concessionaires, merchants, brokers, traders, dealers, agents,
importers and exporters and to undertake and carry on and execute all kinds of
investment, financial, commercial, mercantile, trading and other operations.
(b) To carry on whether as principals, agents or otherwise howsoever the
business of realtors, developers, consultants, estate agents or managers,
builders, contractors, engineers, manufacturers, dealers in or vendors of all
types of property including services.
( ii) To exercise and enforce all rights and powers conferred by or incidental
to the ownership of any shares, stock, obligations or other securities including
without prejudice to the generality of the foregoing all such powers of veto or
control as may be conferred by virtue of the holding by the Company of some
special proportion of the issued or nominal amount thereof, to provide
managerial and other executive, supervisory and consultant services for or in
relation to any company in which the Company is interested upon such terms as
may be thought fit.
(iii) To purchase or otherwise acquire, to sell, exchange, surrender, lease,
mortgage, charge, convert, turn to account, dispose of and deal with real and
personal property and rights of all kinds and, in particular, mortgages,
debentures, produce, concessions, options, contracts, patents, annuities,
licences, stocks, shares, bonds, policies, book debts, business concerns,
undertakings, claims, privileges and choses in action of all kinds.
( iv) To subscribe for, conditionally or unconditionally, to underwrite, issue
on commission or otherwise, take, hold, deal in and convert stocks, shares and
securities of all kinds and to enter into partnership or into any arrangement
for sharing profits, reciprocal concessions or cooperation with any person or
company and to promote and aid in promoting, to constitute, form or organise any
company, syndicate or partnership of any kind, for the purpose of acquiring and
undertaking any property and liabilities of the Company or of advancing,
directly or indirectly, the objects of the Company or for any other purpose
which the Company may think expedient.
( v) To stand surety for or to guarantee, support or secure the performance of
all or any of the obligations of any person, firm or company whether or not
related or affiliated to the Company in any manner and whether by personal
covenant or by mortgage, charge or lien upon the whole or any part of the
undertaking, property and assets of the Company, both present and future,
including its uncalled capital or by any such method and whether or not the
Company shall receive valuable consideration therefor.
( vi) To engage in or carry on any other lawful trade, business or enterprise
which may at any time appear to the Directors of the Company capable of being
conveniently carried on in conjunction with any of the aforementioned businesses
or activities or which may appear to the Directors or the Company likely to be
profitable to the Company.
In the interpretation of this Memorandum of Association in general and of this
Clause 3 in particular no object, business or power specified or mentioned shall
be limited or restricted by reference to or inference from any other object,
business or power, or the name of the Company, or by the juxtaposition of two or
more objects, businesses or powers and that, in the event of any ambiguity in
this clause or elsewhere in this Memorandum of Association, the same shall be
resolved by such interpretation and construction as will widen and enlarge and
not restrict the objects, businesses and powers of and exercisable by the
Company.
4. Except as prohibited or limited by the Companies Law (1995 Revision), the
Company shall have full power and authority to carry out any object and shall
have and be capable of from time to time and at all times exercising any and all
of the powers at any time or from time to time exercisable by a natural person
or body corporate in doing in any part of the world whether as principal, agent,
contractor or otherwise whatever may be considered by it necessary for the
attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereon, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Memorandum of Association and the Articles of
Association of the Company considered necessary or convenient in the manner set
out in the Articles of Association of the Company, and the power to do any of
the following acts or things, viz: to pay all expenses of and incidental to the
promotion, formation and incorporation of the Company; to register the Company
to do business in any other jurisdiction; to sell, lease or dispose of any
property of the Company; to draw, make, accept, endorse, discount, execute and
issue promissory notes, debentures, bills of exchange, bills of lading, warrants
and other negotiable or transferable instruments; to lend money or other assets
and to act as guarantors; to borrow or raise money on the security of the
undertaking or on all or any of the assets of the Company including uncalled
capital or without security; to invest monies of the Company in such manner as
the Directors determine; to promote other companies; to sell the undertaking of
the Company for cash or any other consideration; to distribute assets in specie
to Members of the Company; to make charitable or benevolent donations; to pay
pensions or gratuities or provide other benefits in cash or kind to Directors,
officers, employees, past or present and their families; to purchase Directors
and officers liability insurance and to carry on any trade or business and
generally to do all acts and things which, in the opinion of the Company or the
Directors, may be conveniently or profitably or usefully acquired and dealt
with, carried on, executed or done by the Company in connection with the
business aforesaid PROVIDED THAT the Company shall only carry on the businesses
for which a licence is required under the laws of the Cayman Islands when so
licensed under the terms of such laws.
5. The liability of each Member is limited to the amount from time to time
unpaid on such Member's shares.
6. The share capital of the Company is US$50,000 divided into 50,000 shares of a
nominal or par value of US$1.00 each with power for the Company insofar as is
permitted by law, to redeem or purchase any of its shares and to increase or
reduce the said capital subject to the provisions of the Companies Law (1995
Revision) and the Articles of Association and to issue any part of its capital,
whether original, redeemed or increased with or without any preference, priority
or special privilege or subject to any postponement of rights or to any
conditions or restrictions and so that unless the conditions of issue shall
otherwise expressly declare every issue of shares whether declared to be
preference or otherwise shall be subject to the powers hereinbefore contained.
7. If the Company is registered as exempted, its operations will be carried on
subject to the provisions of Section 192 of the Companies Law (1995 Revision)
and, subject to the provisions of the Companies Law (1995 Revision) and the
Articles of Association, it shall have the power to register by way of
continuation as a body corporate limited by shares under the laws of any
jurisdiction outside the Cayman Islands and to be deregistered in the Cayman
Islands.
WE the several persons whose names and addresses are subscribed are desirous of
being formed into a company in pursuance of this Memorandum of Association and
we respectively agree to take the number of shares in the capital of the Company
set opposite our respective names.
DATED the 4th day of September 1997
SIGNATURES, ADDRESSES and NUMBER OF SHARES
DESCRIPTION OF SUBSCRIBERS TAKEN BY EACH
- ------------------------------
Charles Jennings, Attorney-at-Law One
PO Box 309
Grand Cayman, B.W.I.
- ------------------------------
Gareth Griffiths, Attorney-at-Law One
PO Box 309
Grand Cayman, B.W.I.
- ------------------------------
Witness to the above signatures
Annette Eldemire, Corporate Assistant
PO Box 309
Grand Cayman, B.W.I.
I, ________________ Registrar of Companies in and for the Cayman Islands DO
HEREBY CERTIFY that this is a true and correct copy of the Memorandum of
Association of this Company duly incorporated on the _____ day of _________
1997.
--------------------------
REGISTRAR OF COMPANIES
THE COMPANIES LAW (1995 REVISION)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
CINERGY MPI I, INC.
1. In these Articles Table A in the Schedule to the Statute does not apply and,
unless there be something in the subject or context inconsistent therewith,
"Articles" means these Articles as originally framed or
as from time to time altered by Special
Resolution.
"Auditors" means the persons for the time being
performing the duties of auditors of the
Company.
"Company" means the above-named Company.
"debenture" means debenture stock, mortgages, bonds and
any other such securities of the Company
whether constituting a charge on the assets of
the Company or not.
"Directors" means the directors for the time being of the
Company.
"dividend" includes bonus.
"Member" shall bear the meaning as ascribed to it in
the Statute.
"month" means calendar month.
"paid-up" means paid-up and/or credited as paid-up.
"registered office" means the registered office for the time being
of the Company.
"Seal" means the common seal of the Company and
includes every duplicate seal.
"Secretary" includes an Assistant Secretary and any person
appointed to perform the duties of Secretary
of the Company.
"share" includes a fraction of a share.
"Special Resolution" has the same meaning as in the Statute and
includes a resolution approved in writing as
described therein.
"Statute" means the Companies Law of the Cayman Islands
as amended and every statutory modification or
re-enactment thereof for the time being in
force.
"written" and "in writing" include all modes of representing or
reproducing words in visible form.
Words importing the singular number only include the plural number and
vice-versa.
Words importing the masculine gender only include the feminine gender.
Words importing persons only include corporations.
2. The business of the Company may be commenced as soon after incorporation as
the Directors shall see fit, notwithstanding that part only of the shares may
have been allotted.
3. The Directors may pay, out of the capital or any other monies of the Company,
all expenses incurred in or about the formation and establishment of the Company
including the expenses of registration.
CERTIFICATES FOR SHARES
4. Certificates representing shares of the Company shall be in such form as
shall be determined by the Directors. Such certificates may be under Seal. All
certificates for shares shall be consecutively numbered or otherwise identified
and shall specify the shares to which they relate. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered in the register of Members of the
Company. All certificates surrendered to the Company for transfer shall be
cancelled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and cancelled. The
Directors may authorise certificates to be issued with the seal and authorised
signature(s) affixed by some method or system of mechanical process.
5. Notwithstanding Article 4 of these Articles, if a share certificate be
defaced, lost or destroyed, it may be renewed on payment of a fee of one dollar
(US$l.00) or such less sum and on such terms (if any) as to evidence and
indemnity and the payment of the expenses incurred by the Company in
investigating evidence, as the Directors may prescribe.
ISSUE OF SHARES
6. Subject to the provisions, if any, in that behalf in the Memorandum of
Association and to any direction that may be given by the Company in general
meeting and without prejudice to any special rights previously conferred on the
holders of existing shares, the Directors may allot, issue, grant options over
or otherwise dispose of shares of the Company (including fractions of a share)
with or without preferred, deferred or other special rights or restrictions,
whether in regard to dividend, voting, return of capital or otherwise and to
such persons, at such times and on such other terms as they think proper.
7. The Company shall maintain a register of its Members and every person whose
name is entered as a Member in the register of Members shall be entitled without
payment to receive within two months after allotment or lodgement of transfer
(or within such other period as the conditions of issue shall provide) one
certificate for all his shares or several certificates each for one or more of
his shares upon payment of fifty cents (US$0.50) for every certificate after the
first or such less sum as the Directors shall from time to time determine
provided that in respect of a share or shares held jointly by several persons
the Company shall not be bound to issue more than one certificate and delivery
of a certificate for a share to one of the several joint holders shall be
sufficient delivery to all such holders.
TRANSFER OF SHARES
8. The instrument of transfer of any share shall be in writing and shall be
executed by or on behalf of the transferor and the transferor shall be deemed to
remain the holder of a share until the name of the transferee is entered in the
register in respect thereof.
9. The Directors may in their absolute discretion decline to register any
transfer of shares without assigning any reason therefor. If the Directors
refuse to register a transfer they shall notify the transferee within two months
of such refusal.
10. The registration of transfers may be suspended at such time and for such
periods as the Directors may from time to time determine, provided always that
such registration shall not be suspended for more than forty-five days in any
year.
REDEEMABLE SHARES
11. (a) Subject to the provisions of the Statute and the Memorandum of
Association, shares may be issued on the terms that they are, or at the option
of the Company or the holder are, to be redeemed on such terms and in such
manner as the Company, before the issue of the shares, may by Special Resolution
determine.
(b) Subject to the provisions of the Statute and the Memorandum of
Association, the Company may purchase its own shares (including fractions of a
share), including any redeemable shares, provided that the manner of purchase
has first been authorised by the Company in general meeting and may make payment
therefor in any manner authorised by the Statute, including out of capital.
VARIATION OF RIGHTS OF SHARES
12. If at any time the share capital of the Company is divided into different
classes of shares, the rights attached to any class (unless otherwise provided
by the terms of issue of the shares of that class) may, whether or not the
Company is being wound-up, be varied with the consent in writing of the holders
of three-fourths of the issued shares of that class, or with the sanction of a
Special Resolution passed at a general meeting of the holders of the shares of
that class.
The provisions of these Articles relating to general meetings shall apply to
every such general meeting of the holders of one class of shares except that the
necessary quorum shall be one person holding or representing by proxy at least
one-third of the issued shares of the class and that any holder of shares of the
class present in person or by proxy may demand a poll.
13. The rights conferred upon the holders of the shares of any class issued with
preferred or other rights shall not, unless otherwise expressly provided by the
terms of issue of the shares of that class, be deemed to be varied by the
creation or issue of further shares ranking pari passu therewith.
COMMISSION ON SALE OF SHARES
14. The Company may in so far as the Statute from time to time permits pay a
commission to any person in consideration of his subscribing or agreeing to
subscribe whether absolutely or conditionally for any shares of the Company.
Such commissions may be satisfied by the payment of cash or the lodgement of
fully or partly paid-up shares or partly in one way and partly in the other. The
Company may also on any issue of shares pay such brokerage as may be lawful.
NON-RECOGNITION OF TRUSTS
15. No person shall be recognised by the Company as holding any share upon any
trust and the Company shall not be bound by or be compelled in any way to
recognise (even when having notice thereof) any equitable, contingent, future,
or partial interest in any share, or any interest in any fractional part of a
share, or (except only as is otherwise provided by these Articles or the
Statute) any other rights in respect of any share except an absolute right to
the entirety thereof in the registered holder.
LIEN ON SHARES
16. The Company shall have a first and paramount lien and charge on all shares
(whether fully paid-up or not) registered in the name of a Member (whether
solely or jointly with others) for all debts, liabilities or engagements to or
with the Company (whether presently payable or not) by such Member or his
estate, either alone or jointly with any other person, whether a Member or not,
but the Directors may at any time declare any share to be wholly or in part
exempt from the provisions of this Article. The registration of a transfer of
any such share shall operate as a waiver of the Company's lien (if any) thereon.
The Company's lien (if any) on a share shall extend to all dividends or other
monies payable in respect thereof.
17. The Company may sell, in such manner as the Directors think fit, any shares
on which the Company has a lien, but no sale shall be made unless a sum in
respect of which the lien exists is presently payable, nor until the expiration
of fourteen days after a notice in writing stating and demanding payment of such
part of the amount in respect of which the lien exists as is presently payable,
has been given to the registered holder or holders for the time being of the
share, or the person, of which the Company has notice, entitled thereto by
reason of his death or bankruptcy.
18. To give effect to any such sale the Directors may authorise some person to
transfer the shares sold to the purchaser thereof. The purchaser shall be
registered as the holder of the shares comprised in any such transfer, and he
shall not be bound to see to the application of the purchase money, nor shall
his title to the shares be affected by any irregularity or invalidity in the
proceedings in reference to the sale.
19. The proceeds of such sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as is
presently payable and the residue, if any, shall (subject to a like lien for
sums not presently payable as existed upon the shares before the sale) be paid
to the person entitled to the shares at the date of the sale.
CALL ON SHARES
20. (a) The Directors may from time to time make calls upon the Members in
respect of any monies unpaid on their shares (whether on account of the nominal
value of the shares or by way of premium or otherwise) and not by the conditions
of allotment thereof made payable at fixed terms, provided that no call shall be
payable at less than one month from the date fixed for the payment of the last
preceding call, and each Member shall (subject to receiving at least fourteen
days notice specifying the time or times of payment) pay to the Company at the
time or times so specified the amount called on the shares. A call may be
revoked or postponed as the Directors may determine. A call may be made payable
by instalments.
(b) A call shall be deemed to have been made at the time when the
resolution of the Directors authorising such call was passed.
(c) The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
21. If a sum called in respect of a share is not paid before or on a day
appointed for payment thereof, the persons from whom the sum is due shall pay
interest on the sum from the day appointed for payment thereof to the time of
actual payment at such rate not exceeding ten per cent per annum as the
Directors may determine, but the Directors shall be at liberty to waive payment
of such interest either wholly or in part.
22. Any sum which by the terms of issue of a share becomes payable on allotment
or at any fixed date, whether on account of the nominal value of the share or by
way of premium or otherwise, shall for the purposes of these Articles be deemed
to be a call duly made, notified and payable on the date on which by the terms
of issue the same becomes payable, and in the case of non-payment all the
relevant provisions of these Articles as to payment of interest forfeiture or
otherwise shall apply as if such sum had become payable by virtue of a call duly
made and notified.
23. The Directors may, on the issue of shares, differentiate between the holders
as to the amount of calls or interest to be paid and the times of payment.
24. (a) The Directors may, if they think fit, receive from any Member willing to
advance the same, all or any part of the monies uncalled and unpaid upon any
shares held by him, and upon all or any of the monies so advanced may (until the
same would but for such advances, become payable) pay interest at such rate not
exceeding (unless the Company in general meeting shall otherwise direct) seven
per cent per annum, as may be agreed upon between the Directors and the Member
paying such sum in advance.
(b) No such sum paid in advance of calls shall entitle the Member paying such
sum to any portion of a dividend declared in respect of any period prior to the
date upon which such sum would, but for such payment, become presently payable.
FORFEITURE OF SHARES
25. (a) If a Member fails to pay any call or instalment of a call or to make any
payment required by the terms of issue on the day appointed for payment thereof,
the Directors may, at any time thereafter during such time as any part of the
call, instalment or payment remains unpaid, give notice requiring payment of so
much of the call, instalment or payment as is unpaid, together with any interest
which may have accrued and all expenses that have been incurred by the Company
by reason of such non-payment. Such notice shall name a day (not earlier than
the expiration of fourteen days from the date of giving of the notice) on or
before which the payment required by the notice is to be made, and shall state
that, in the event of non-payment at or before the time appointed the shares in
respect of which such notice was given will be liable to be forfeited.
(b) If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which the notice has been given may at any time
thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the Directors to that effect. Such forfeiture shall
include all dividends declared in respect of the forfeited share and not
actually paid before the forfeiture.
(c) A forfeited share may be sold or otherwise disposed of on such terms
and in such manner as the Directors think fit and at any time before a sale or
disposition the forfeiture may be cancelled on such terms as the Directors think
fit.
26. A person whose shares have been forfeited shall cease to be a Member in
respect of the forfeited shares, but shall, notwithstanding, remain liable to
pay to the Company all monies which, at the date of forfeiture were payable by
him to the Company in respect of the shares together with interest thereon, but
his liability shall cease if and when the Company shall have received payment in
full of all monies whenever payable in respect of the shares.
27. A certificate in writing under the hand of one Director or the Secretary of
the Company that a share in the Company has been duly forfeited on a date stated
in the declaration shall be conclusive evidence of the fact therein stated as
against all persons claiming to be entitled to the share. The Company may
receive the consideration given for the share on any sale or disposition thereof
and may execute a transfer of the share in favour of the person to whom the
share is sold or disposed of and he shall thereupon be registered as the holder
of the share and shall not be bound to see to the application of the purchase
money, if any, nor shall his title to the share be affected by any irregularity
or invalidity in the proceedings in reference to the forfeiture, sale or
disposal of the share.
28. The provisions of these Articles as to forfeiture shall apply in the case of
non-payment of any sum which, by the terms of issue of a share, becomes payable
at a fixed time, whether on account of the nominal value of the share or by way
of premium as if the same had been payable by virtue of a call duly made and
notified.
REGISTRATION OF EMPOWERING INSTRUMENTS
29. The Company shall be entitled to charge a fee not exceeding one dollar
(US$l.00) on the registration of every probate, letters of administration,
certificate of death or marriage, power of attorney, notice in lieu of
distringas, or other instrument.
TRANSMISSION OF SHARES
30. In case of the death of a Member, the survivor or survivors where the
deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only persons recognised by the
Company as having any title to his interest in the shares, but nothing herein
contained shall release the estate of any such deceased holder from any
liability in respect of any shares which had been held by him solely or jointly
with other persons.
31. (a) Any person becoming entitled to a share in consequence of the death or
bankruptcy or liquidation or dissolution of a Member (or in any other way than
by transfer) may, upon such evidence being produced as may from time to time be
required by the Directors and subject as hereinafter provided, elect either to
be registered himself as holder of the share or to make such transfer of the
share to such other person nominated by him as the deceased or bankrupt person
could have made and to have such person registered as the transferee thereof,
but the Directors shall, in either case, have the same right to decline or
suspend registration as they would have had in the case of a transfer of the
share by that Member before his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered himself
as holder he shall deliver or send to the Company a notice in writing signed by
him stating that he so elects.
32. A person becoming entitled to a share by reason of the death or bankruptcy
or liquidation or dissolution of the holder (or in any other case than by
transfer) shall be entitled to the same dividends and other advantages to which
he would be entitled if he were the registered holder of the share, except that
he shall not, before being registered as a Member in respect of the share, be
entitled in respect of it to exercise any right conferred by membership in
relation to meetings of the Company PROVIDED HOWEVER that the Directors may at
any time give notice requiring any such person to elect either to be registered
himself or to transfer the share and if the notice is not complied with within
ninety days the Directors may thereafter withhold payment of all dividends,
bonuses or other monies payable in respect of the share until the requirements
of the notice have been complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION, CHANGE OF
LOCATION OF REGISTERED OFFICE & ALTERATION OF CAPITAL
33. (a) Subject to and in so far as permitted by the provisions of the Statute,
the Company may from time to time by ordinary resolution alter or amend its
Memorandum of Association otherwise than with respect to its name and objects
and may, without restricting the generality of the foregoing:
( i) increase the share capital by such sum to be divided into shares of such
amount or without nominal or par value as the resolution shall prescribe and
with such rights, priorities and privileges annexed thereto, as the Company in
general meeting may determine.
( ii) consolidate and divide all or any of its share capital into shares of
larger amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the whole or
any part of its share capital into shares of smaller amount than is fixed by the
Memorandum of Association or into shares without nominal or par value;
( iv) cancel any shares which at the date of the passing of the resolution have
not been taken or agreed to be taken by any person.
(b) All new shares created hereunder shall be subject to the same provisions
with reference to the payment of calls, liens, transfer, transmission,
forfeiture and otherwise as the shares in the original share capital.
(c) Subject to the provisions of the Statute, the Company may by Special
Resolution change its name or alter its objects.
(d) Without prejudice to Article 11 hereof and subject to the provisions of the
Statute, the Company may by Special Resolution reduce its share capital and any
capital redemption reserve fund.
(e) Subject to the provisions of the Statute, the Company may by resolution of
the Directors change the location of its registered office.
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
34. For the purpose of determining Members entitled to notice of or to vote at
any meeting of Members or any adjournment thereof, or Members entitled to
receive payment of any dividend, or in order to make a determination of Members
for any other proper purpose, the Directors of the Company may provide that the
register of Members shall be closed for transfers for a stated period but not to
exceed in any case forty days. If the register of Members shall be so closed for
the purpose of determining Members entitled to notice of or to vote at a meeting
of Members such register shall be so closed for at least ten days immediately
preceding such meeting and the record date for such determination shall be the
date of the closure of the register of Members.
35. In lieu of or apart from closing the register of Members, the Directors may
fix in advance a date as the record date for any such determination of Members
entitled to notice of or to vote at a meeting of the Members and for the purpose
of determining the Members entitled to receive payment of any dividend the
Directors may, at or within 90 days prior to the date of declaration of such
dividend fix a subsequent date as the record date for such determination.
36. If the register of Members is not so closed and no record date is fixed for
the determination of Members entitled to notice of or to vote at a meeting of
Members or Members entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of Members. When a determination of Members
entitled to vote at any meeting of Members has been made as provided in this
section, such determination shall apply to any adjournment thereof.
GENERAL MEETING
37. (a) Subject to paragraph (c) hereof, the Company shall within one year of
its incorporation and in each year of its existence thereafter hold a general
meeting as its annual general meeting and shall specify the meeting as such in
the notices calling it. The annual general meeting shall be held at such time
and place as the Directors shall appoint and if no other time and place is
prescribed by them, it shall be held at the registered office on the second
Wednesday in December of each year at ten o'clock in the morning.
(b) At these meetings the report of the Directors (if any) shall be
presented.
(c) If the Company is exempted as defined in the Statute it may but shall
not be obliged to hold an annual general meeting.
38. (a) The Directors may whenever they think fit, and they shall on the
requisition of Members of the Company holding at the date of the deposit of the
requisition not less than one-tenth of such of the paid-up capital of the
Company as at the date of the deposit carries the right of voting at general
meetings of the Company, proceed to convene a general meeting of the Company.
(b) The requisition must state the objects of the meeting and must be
signed by the requisitionists and deposited at the registered office of the
Company and may consist of several documents in like form each signed by one or
more requisitionists.
(c) If the Directors do not within twenty-one days from the date of the
deposit of the requisition duly proceed to convene a general meeting, the
requisitionists, or any of them representing more than one-half of the total
voting rights of all of them, may themselves convene a general meeting, but any
meeting so convened shall not be held after the expiration of three months after
the expiration of the said twenty-one days.
(d) A general meeting convened as aforesaid by requisitionists shall be
convened in the same manner as nearly as possible as that in which general
meetings are to be convened by Directors.
NOTICE OF GENERAL MEETINGS
39. At least five days' notice shall be given of an annual general meeting or
any other general meeting. Every notice shall be exclusive of the day on which
it is given or deemed to be given and of the day for which it is given and shall
specify the place, the day and the hour of the meeting and the general nature of
the business and shall be given in manner hereinafter mentioned or in such other
manner if any as may be prescribed by the Company PROVIDED that a general
meeting of the Company shall, whether or not the notice specified in this
regulation has been given and whether or not the provisions of Article 38 have
been complied with, be deemed to have been duly convened if it is so agreed:
(a) in the case of a general meeting called as an annual general
meeting by all the Members entitled to attend and vote thereat
or their proxies; and
(b) in the case of any other general meeting by a majority in number
of the Members having a right to attend and vote at the meeting,
being a majority together holding not less than seventy-five per
cent in nominal value or in the case of shares without nominal
or par value seventy-five per cent of the shares in issue, or
their proxies.
40. The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a meeting by any person entitled to receive notice
shall not invalidate the proceedings of that meeting.
PROCEEDINGS AT GENERAL MEETINGS
41. No business shall be transacted at any general meeting unless a quorum of
Members is present at the time when the meeting proceeds to business; two
Members present in person or by proxy shall be a quorum provided always that if
the Company has one Member of record the quorum shall be that one Member present
in person or by proxy.
42. A resolution (including a Special Resolution) in writing (in one or more
counterparts) signed by all Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations by
their duly authorised representatives) shall be as valid and effective as if the
same had been passed at a general meeting of the Company duly convened and held.
43. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened upon the requisition of Members, shall be
dissolved and in any other case it shall stand adjourned to the same day in the
next week at the same time and place or to such other time or such other place
as the Directors may determine and if at the adjourned meeting a quorum is not
present within half an hour from the time appointed for the meeting the Members
present shall be a quorum.
44. The Chairman, if any, of the Board of Directors shall preside as Chairman at
every general meeting of the Company, or if there is no such Chairman, or if he
shall not be present within fifteen minutes after the time appointed for the
holding of the meeting, or is unwilling to act, the Directors present shall
elect one of their number to be Chairman of the meeting.
45. If at any general meeting no Director is willing to act as Chairman or if no
Director is present within fifteen minutes after the time appointed for holding
the meeting, the Members present shall choose one of their number to be Chairman
of the meeting.
46. The Chairman may, with the consent of any general meeting duly constituted
hereunder, and shall if so directed by the meeting, adjourn the meeting from
time to time and from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the meeting from
which the adjournment took place. When a general meeting is adjourned for thirty
days or more, notice of the adjourned meeting shall be given as in the case of
an original meeting; save as aforesaid it shall not be necessary to give any
notice of an adjournment or of the business to be transacted at an adjourned
general meeting.
47. At any general meeting a resolution put to the vote of the meeting shall be
decided on a show of hands unless a poll is, before or on the declaration of the
result of the show of hands, demanded by the Chairman or any other Member
present in person or by proxy.
48. Unless a poll be so demanded a declaration by the Chairman that a resolution
has on a show of hands been carried, or carried unanimously, or by a particular
majority, or lost, and an entry to that effect in the Company's Minute Book
containing the Minutes of the proceedings of the meeting shall be conclusive
evidence of that fact without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
49. The demand for a poll may be withdrawn.
50. Except as provided in Article 52, if a poll is duly demanded it shall be
taken in such manner as the Chairman directs and the result of the poll shall be
deemed to be the resolution of the general meeting at which the poll was
demanded.
51. In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman of the general meeting at which the show of hands takes place
or at which the poll is demanded, shall be entitled to a second or casting vote.
52. A poll demanded on the election of a Chairman or on a question of
adjournment shall be taken forthwith. A poll demanded on any other question
shall be taken at such time as the Chairman of the general meeting directs and
any business other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of the poll.
VOTES OF MEMBERS
53. Subject to any rights or restrictions for the time being attached to any
class or classes of shares, on a show of hands every Member of record present in
person or by proxy at a general meeting shall have one vote and on a poll every
Member of record present in person or by proxy shall have one vote for each
share registered in his name in the register of Members.
54. In the case of joint holders of record the vote of the senior who tenders a
vote, whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders, and for this purpose seniority shall be
determined by the order in which the names stand in the register of Members.
55. A Member of unsound mind, or in respect of whom an order has been made by
any court, having jurisdiction in lunacy, may vote, whether on a show of hands
or on a poll, by his committee, receiver, curator bonis, or other person in the
nature of a committee, receiver or curator bonis appointed by that court, and
any such committee, receiver, curator bonis or other persons may vote by proxy.
56. No Member shall be entitled to vote at any general meeting unless he is
registered as a shareholder of the Company on the record date for such meeting
nor unless all calls or other sums presently payable by him in respect of shares
in the Company have been paid.
57. No objection shall be raised to the qualification of any voter except at the
general meeting or adjourned general meeting at which the vote objected to is
given or tendered and every vote not disallowed at such general meeting shall be
valid for all purposes. Any such objection made in due time shall be referred to
the Chairman of the general meeting whose decision shall be final and
conclusive.
58. On a poll or on a show of hands votes may be given either personally or by
proxy.
PROXIES
59. The instrument appointing a proxy shall be in writing and shall be executed
under the hand of the appointor or of his attorney duly authorised in writing,
or, if the appointor is a corporation under the hand of an officer or attorney
duly authorised in that behalf. A proxy need not be a Member of the Company.
60. The instrument appointing a proxy shall be deposited at the registered
office of the Company or at such other place as is specified for that purpose in
the notice convening the meeting no later than the time for holding the meeting,
or adjourned meeting provided that the Chairman of the Meeting may at his
discretion direct that an instrument of proxy shall be deemed to have been duly
deposited upon receipt of telex, cable or telecopy confirmation from the
appointor that the instrument of proxy duly signed is in the course of
transmission to the Company.
61. The instrument appointing a proxy may be in any usual or common form and may
be expressed to be for a particular meeting or any adjournment thereof or
generally until revoked. An instrument appointing a proxy shall be deemed to
include the power to demand or join or concur in demanding a poll.
62. A vote given in accordance with the terms of an instrument of proxy shall be
valid notwithstanding the previous death or insanity of the principal or
revocation of the proxy or of the authority under which the proxy was executed,
or the transfer of the share in respect of which the proxy is given provided
that no intimation in writing of such death, insanity, revocation or transfer as
aforesaid shall have been received by the Company at the registered office
before the commencement of the general meeting, or adjourned meeting at which it
is sought to use the proxy.
63. Any corporation which is a Member of record of the Company may in accordance
with its Articles or in the absence of such provision by resolution of its
Directors or other governing body authorise such person as it thinks fit to act
as its representative at any meeting of the Company or of any class of Members
of the Company, and the person so authorised shall be entitled to exercise the
same powers on behalf of the corporation which he represents as the corporation
could exercise if it were an individual Member of record of the Company.
64. Shares of its own capital belonging to the Company or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting
and shall not be counted in determining the total number of outstanding shares
at any given time.
DIRECTORS
65. There shall be a Board of Directors consisting of not less than one or more
than ten persons (exclusive of alternate Directors) PROVIDED HOWEVER that the
Company may from time to time by ordinary resolution increase or reduce the
limits in the number of Directors. The first Directors of the Company shall be
determined in writing by, or appointed by a resolution of, the subscribers of
the Memorandum of Association or a majority of them.
66. The remuneration to be paid to the Directors shall be such remuneration as
the Directors shall determine. Such remuneration shall be deemed to accrue from
day to day. The Directors shall also be entitled to be paid their travelling,
hotel and other expenses properly incurred by them in going to, attending and
returning from meetings of the Directors, or any committee of the Directors, or
general meetings of the Company, or otherwise in connection with the business of
the Company, or to receive a fixed allowance in respect thereof as may be
determined by the Directors from time to time, or a combination partly of one
such method and partly the other.
67. The Directors may by resolution award special remuneration to any Director
of the Company undertaking any special work or services for, or undertaking any
special mission on behalf of, the Company other than his ordinary routine work
as a Director. Any fees paid to a Director who is also counsel or solicitor to
the Company, or otherwise serves it in a professional capacity shall be in
addition to his remuneration as a Director.
68. A Director or alternate Director may hold any other office or place of
profit under the Company (other than the office of Auditor) in conjunction with
his office of Director for such period and on such terms as to remuneration and
otherwise as the Directors may determine.
69. A Director or alternate Director may act by himself or his firm in a
professional capacity for the Company and he or his firm shall be entitled to
remuneration for professional services as if he were not a Director or alternate
Director.
70. A shareholding qualification for Directors may be fixed by the Company in
general meeting, but unless and until so fixed no qualification shall be
required.
71. A Director or alternate Director of the Company may be or become a director
or other officer of or otherwise interested in any company promoted by the
Company or in
which the Company may be interested as shareholder or otherwise and no such
Director or alternate Director shall be accountable to the Company for any
remuneration or other benefits received by him as a director or officer of, or
from his interest in, such other company.
72. No person shall be disqualified from the office of Director or alternate
Director or prevented by such office from contracting with the Company, either
as vendor, purchaser or otherwise, nor shall any such contract or any contract
or transaction entered into by or on behalf of the Company in which any Director
or alternate Director shall be in any way interested be or be liable to be
avoided, nor shall any Director or alternate Director so contracting or being so
interested be liable to account to the Company for any profit realised by any
such contract or transaction by reason of such Director holding office or of the
fiduciary relation thereby established. A Director (or his alternate Director in
his absence) shall be at liberty to vote in respect of any contract or
transaction in which he is so interested as aforesaid PROVIDED HOWEVER that the
nature of the interest of any Director or alternate Director in any such
contract or transaction shall be disclosed by him or the alternate Director
appointed by him at or prior to its consideration and any vote thereon.
73. A general notice that a Director or alternate Director is a shareholder of
any specified firm or company and is to be regarded as interested in any
transaction with such firm or company shall be sufficient disclosure under
Article 72 and after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE DIRECTORS
74. Subject to the exception contained in Article 82, a Director who expects to
be unable to attend Directors' Meetings because of absence, illness or otherwise
may appoint any person to be an alternate Director to act in his stead and such
appointee whilst he holds office as an alternate Director shall, in the event of
absence therefrom of his appointor, be entitled to attend meetings of the
Directors and to vote thereat and to do, in the place and stead of his
appointor, any other act or thing which his appointor is permitted or required
to do by virtue of his being a Director as if the alternate Director were the
appointor, other than appointment of an alternate to himself, and he shall ipso
facto vacate office if and when his appointor ceases to be a Director or removes
the appointee from office. Any appointment or removal under this Article shall
be effected by notice in writing under the hand of the Director making the same.
POWERS AND DUTIES OF DIRECTORS
75. The business of the Company shall be managed by the Directors (or a sole
Director if only one is appointed) who may pay all expenses incurred in
promoting, registering and setting up the Company, and may exercise all such
powers of the Company as are not, from time to time by the Statute, or by these
Articles, or such regulations, being not inconsistent with the aforesaid, as may
be prescribed by the Company in general meeting required to be exercised by the
Company in general meeting PROVIDED HOWEVER that no regulations made by the
Company in general meeting shall invalidate any prior act of the Directors which
would have been valid if that regulation had not been made.
76. The Directors may from time to time and at any time by powers of attorney
appoint any company, firm, person or body of persons, whether nominated directly
or indirectly by the Directors, to be the attorney or attorneys of the Company
for such purpose and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Directors under these Articles)
and for such period and subject to such conditions as they may think fit, and
any such powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorneys as the Directors may
think fit and may also authorise any such attorney to delegate all or any of the
powers, authorities and discretions vested in him.
77. All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or otherwise executed as the case may be in
such manner as the Directors shall from time to time by resolution determine.
78. The Directors shall cause minutes to be made in books provided for the
purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those represented
thereat by an alternate or by proxy) present at each meeting of
the Directors and of any committee of the Directors;
(c) of all resolutions and proceedings at all meetings of the
Company and of the Directors and of committees of Directors.
79. The Directors on behalf of the Company may pay a gratuity or pension or
allowance on retirement to any Director who has held any other salaried office
or place of profit with the Company or to his widow or dependants and may make
contributions to any fund and pay premiums for the purchase or provision of any
such gratuity, pension or allowance.
80. The Directors may exercise all the powers of the Company to borrow money and
to mortgage or charge its undertaking, property and uncalled capital or any part
thereof and to issue debentures, debenture stock and other securities whether
outright or as security for any debt, liability or obligation of the Company or
of any third party.
MANAGEMENT
81. (a) The Directors may from time to time provide for the management of the
affairs of the Company in such manner as they shall think fit and the provisions
contained in the three next following paragraphs shall be without prejudice to
the general powers conferred by this paragraph.
(b) The Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the affairs of the
Company and may appoint any persons to be members of such committees or local
boards or any managers or agents and may fix their remuneration.
(c) The Directors from time to time and at any time may delegate to any such
committee, local board, manager or agent any of the powers, authorities and
discretions for the time being vested in the Directors and may authorise the
members for the time being of any such local board, or any of them to fill up
any vacancies therein and to act notwithstanding vacancies and any such
appointment or delegation may be made on such terms and subject to such
conditions as the Directors may think fit and the Directors may at any time
remove any person so appointed and may annul or vary any such delegation, but no
person dealing in good faith and without notice of any such annulment or
variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by the Directors to
subdelegate all or any of the powers, authorities, and discretions for the time
being vested in them.
MANAGING DIRECTORS
82. The Directors may, from time to time, appoint one or more of their body (but
not an alternate Director) to the office of Managing Director for such term and
at such remuneration (whether by way of salary, or commission, or participation
in profits, or partly in one way and partly in another) as they may think fit
but his appointment shall be subject to determination ipso facto if he ceases
from any cause to be a Director and no alternate Director appointed by him can
act in his stead as a Director or Managing Director.
83. The Directors may entrust to and confer upon a Managing Director any of the
powers exercisable by them upon such terms and conditions and with such
restrictions as they may think fit and either collaterally with or to the
exclusion of their own powers and may from time to time revoke, withdraw, alter
or vary all or any of such powers.
PROCEEDINGS OF DIRECTORS
84. Except as otherwise provided by these Articles, the Directors shall meet
together for the despatch of business, convening, adjourning and otherwise
regulating their meetings as they think fit. Questions arising at any meeting
shall be decided by a majority of votes of the Directors and alternate Directors
present at a meeting at which there is a quorum, the vote of an alternate
Director not being counted if his appointor be present at such meeting. In case
of an equality of votes, the Chairman shall have a second or casting vote.
85. A Director or alternate Director may, and the Secretary on the requisition
of a Director or alternate Director shall, at any time summon a meeting of the
Directors by at least two days' notice in writing to every Director and
alternate Director which notice shall set forth the general nature of the
business to be considered unless notice is waived by all the Directors (or their
alternates) either at, before or after the meeting is held and PROVIDED FURTHER
if notice is given in person, by cable, telex or telecopy the same shall be
deemed to have been given on the day it is delivered to the Directors or
transmitting organisation as the case may be. The provisions of Article 40 shall
apply mutatis mutandis with respect to notices of meetings of Directors.
86. The quorum necessary for the transaction of the business of the Directors
may be fixed by the Directors and unless so fixed shall be two, a Director and
his appointed alternate Director being considered only one person for this
purpose, PROVIDED ALWAYS that if there shall at any time be only a sole Director
the quorum shall be one. For the purposes of this Article an alternate Director
or proxy appointed by a Director shall be counted in a quorum at a meeting at
which the Director appointing him is not present.
87. The continuing Directors may act notwithstanding any vacancy in their body,
but if and so long as their number is reduced below the number fixed by or
pursuant to these Articles as the necessary quorum of Directors the continuing
Directors or Director may act for the purpose of increasing the number of
Directors to that number, or of summoning a general meeting of the Company, but
for no other purpose.
88. The Directors may elect a Chairman of their Board and determine the period
for which he is to hold office; but if no such Chairman is elected, or if at any
meeting the Chairman is not present within five minutes after the time appointed
for holding the same, the Directors present may choose one of their number to be
Chairman of the meeting.
89. The Directors may delegate any of their powers to committees consisting of
such member or members of the Board of Directors (including Alternate Directors
in the absence of their appointors) as they think fit; any committee so formed
shall in the exercise of the powers so delegated conform to any regulations that
may be imposed on it by the Directors.
90. A committee may meet and adjourn as it thinks proper. Questions arising at
any meeting shall be determined by a majority of votes of the members present,
and in the case of an equality of votes the Chairman shall have a second or
casting vote.
91. All acts done by any meeting of the Directors or of a committee of Directors
(including any person acting as an alternate Director) shall, notwithstanding
that it be
afterwards discovered that there was some defect in the appointment of any
Director or alternate Director, or that they or any of them were disqualified,
be as valid as if every such person had been duly appointed and qualified to be
a Director or alternate Director as the case may be.
92. Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such 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 pursuant to this provision shall constitute presence in person at such
meeting. A resolution in writing (in one or more counterparts), signed by all
the Directors for the time being or all the members of a committee of Directors
(an alternate Director being entitled to sign such resolution on behalf of his
appointor) shall be as valid and effectual as if it had been passed at a meeting
of the Directors or committee as the case may be duly convened and held.
93. (a) A Director may be represented at any meetings of the Board of Directors
by a proxy appointed by him in which event the presence or vote of the proxy
shall for all purposes be deemed to be that of the Director.
(b) The provisions of Articles 59-62 shall mutatis mutandis apply to the
appointment of proxies by Directors.
VACATION OF OFFICE OF DIRECTOR
94. The office of a Director shall be vacated:
(a) if he gives notice in writing to the Company that he resigns the office of
Director;
(b) if he absents himself (without being represented by proxy or an alternate
Director appointed by him) from three consecutive meetings of the Board of
Directors without special leave of absence from the Directors, and they
pass a resolution that he has by reason of such absence vacated office;
(c) if he dies, becomes bankrupt or makes any arrangement or composition with
his creditors generally;
(d) if he is found a lunatic or becomes of unsound mind.
APPOINTMENT AND REMOVAL OF DIRECTORS
95. The Company may by ordinary resolution appoint any person to be a Director
and may in like manner remove any Director and may in like manner appoint
another person in his stead.
96. The Directors shall have power at any time and from time to time to appoint
any person to be a Director, either to fill a casual vacancy or as an addition
to the existing Directors but so that the total amount of Directors (exclusive
of alternate Directors) shall not at any time exceed the number fixed in
accordance with these Articles.
PRESUMPTION OF ASSENT
97. A Director of the Company who is present at a meeting of the Board of
Directors at which action on any Company matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
Minutes of the meeting or unless he shall file his written dissent from such
action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to such
person immediately after the adjournment of the meeting. Such right to dissent
shall not apply to a Director who voted in favour of such action.
SEAL
98. (a) The Company may, if the Directors so determine, have a Seal which shall,
subject to paragraph (c) hereof, only be used by the authority of the Directors
or of a committee of the Directors authorised by the Directors in that behalf
and every instrument to which the Seal has been affixed shall be signed by one
person who shall be either a Director or the Secretary or Secretary-Treasurer or
some person appointed by the Directors for the purpose.
(b) The Company may have for use in any place or places outside the Cayman
Islands a duplicate Seal or Seals each of which shall be a facsimile of the
Common Seal of the Company and, if the Directors so determine, with the addition
on its face of the name of every place where it is to be used.
(c) A Director, Secretary or other officer or representative or attorney
may without further authority of the Directors affix the Seal of the Company
over his signature alone to any document of the Company required to be
authenticated by him under Seal or to be filed with the Registrar of Companies
in the Cayman Islands or elsewhere wheresoever.
OFFICERS
99. The Company may have a President, a Secretary or Secretary-Treasurer
appointed by the Directors who may also from time to time appoint such other
officers as they consider necessary, all for such terms, at such remuneration
and to perform such duties, and subject to such provisions as to
disqualification and removal as the Directors from time to time prescribe.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
100. Subject to the Statute, the Directors may from time to time declare
dividends (including interim dividends) and distributions on shares of the
Company outstanding and authorise payment of the same out of the funds of the
Company lawfully available therefor.
101. The Directors may, before declaring any dividends or distributions, set
aside such sums as they think proper as a reserve or reserves which shall at the
discretion of the Directors, be applicable for any purpose of the Company and
pending such application may, at the like discretion, be employed in the
business of the Company.
102. No dividend or distribution shall be payable except out of the profits of
the Company, realised or unrealised, or out of the share premium account or as
otherwise permitted by the Statute.
103. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends or distributions, if dividends or distributions are to be
declared on a class of shares they shall be declared and paid according to the
amounts paid or credited as paid on the shares of such class outstanding on the
record date for such dividend or distribution as determined in accordance with
these Articles but no amount paid or credited as paid on a share in advance of
calls shall be treated for the purpose of this Article as paid on the share.
104. The Directors may deduct from any dividend or distribution payable to any
Member all sums of money (if any) presently payable by him to the Company on
account of calls or otherwise.
105. The Directors may declare that any dividend or distribution be paid wholly
or partly by the distribution of specific assets and in particular of paid up
shares, debentures, or debenture stock of any other company or in any one or
more of such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think expedient and in
particular may issue fractional certificates and fix the value for distribution
of such specific assets or any part thereof and may determine that cash payments
shall be made to any Members upon the footing of the value so fixed in order to
adjust the rights of all Members and may vest any such specific assets in
trustees as may seem expedient to the Directors.
106. Any dividend, distribution, interest or other monies payable in cash in
respect of shares may be paid by cheque or warrant sent through the post
directed to the registered address of the holder or, in the case of joint
holders, to the holder who is first named on the register of Members or to such
person and to such address as such holder or joint holders may in writing
direct. Every such cheque or warrant shall be made payable to the order of the
person to whom it is sent. Any one of two or more joint holders may give
effectual receipts for any dividends, bonuses, or other monies payable in
respect of the share held by them as joint holders.
107. No dividend or distribution shall bear interest against the Company.
CAPITALISATION
108. The Company may upon the recommendation of the Directors by ordinary
resolution authorise the Directors to capitalise any sum standing to the credit
of any of the Company's reserve accounts (including share premium account and
capital redemption reserve fund) or any sum standing to the credit of profit and
loss account or otherwise available for distribution and to appropriate such sum
to Members in the proportions in which such sum would have been divisible
amongst them had the same been a distribution of profits by way of dividend and
to apply such sum on their behalf in paying up in full unissued shares for
allotment and distribution credited as fully paid up to and amongst them in the
proportion aforesaid. In such event the Directors shall do all acts and things
required to give effect to such capitalisation, with full power to the Directors
to make such provisions as they think fit for the case of shares becoming
distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the Members
concerned). The Directors may authorise any person to enter on behalf of all of
the Members interested into an agreement with the Company providing for such
capitalisation and matters incidental thereto and any agreement made under such
authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT
109. The Directors shall cause proper books of account to be kept with respect
to:
(a) all sums of money received and expended by the Company and the matters in
respect of which the receipt or expenditure takes place;
(b) all sales and purchases of goods by the Company;
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such books of
account as are necessary to give a true and fair view of the state of the
Company's affairs and to explain its transactions.
110. The Directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the
accounts and books of the Company or any of them shall be open to the inspection
of Members not being Directors and no Member (not being a Director) shall have
any right of inspecting any account or book or document of the Company except as
conferred by Statute or authorised by the Directors or by the Company in general
meeting.
111. The Directors may from time to time cause to be prepared and to be laid
before the Company in general meeting profit and loss accounts, balance sheets,
group accounts (if any) and such other reports and accounts as may be required
by law.
AUDIT
112. The Company may at any annual general meeting appoint an Auditor or
Auditors of the Company who shall hold office until the next annual general
meeting and may fix his or their remuneration.
113. The Directors may before the first annual general meeting appoint an
Auditor or Auditors of the Company who shall hold office until the first annual
general meeting unless previously removed by an ordinary resolution of the
Members in general meeting in which case the Members at that meeting may appoint
Auditors. The Directors may fill any casual vacancy in the office of Auditor but
while any such vacancy continues the surviving or continuing Auditor or
Auditors, if any, may act. The remuneration of any Auditor appointed by the
Directors under this Article may be fixed by the Directors.
114. Every Auditor of the Company shall have a right of access at all times to
the books and accounts and vouchers of the Company and shall be entitled to
require from the Directors and Officers of the Company such information and
explanation as may be necessary for the performance of the duties of the
auditors.
115. Auditors shall at the next annual general meeting following their
appointment and at any other time during their term of office, upon request of
the Directors or any general meeting of the Members, make a report on the
accounts of the Company in general meeting during their tenure of office.
NOTICES
116. Notices shall be in writing and may be given by the Company to any Member
either personally or by sending it by post, cable, telex or telecopy to him or
to his address as shown in the register of Members, such notice, if mailed, to
be forwarded airmail if the address be outside the Cayman Islands.
117. (a) Where a notice is sent by post, service of the notice shall be deemed
to be effected by properly addressing, pre-paying and posting a letter
containing the notice, and to have been effected at the expiration of sixty
hours after the letter containing the same is posted as aforesaid.
(b) Where a notice is sent by cable, telex, or telecopy, service of the
notice shall be deemed to be effected by properly addressing, and sending such
notice through a transmitting organisation and to have been effected on the day
the same is sent as aforesaid.
118. A notice may be given by the Company to the joint holders of record of a
share by giving the notice to the joint holder first named on the register of
Members in respect of the share.
119. A notice may be given by the Company to the person or persons which the
Company has been advised are entitled to a share or shares in consequence of the
death or bankruptcy of a Member by sending it through the post as aforesaid in a
pre-paid letter addressed to them by name, or by the title of representatives of
the deceased, or trustee of the bankrupt, or by any like description at the
address supplied for that purpose by the persons claiming to be so entitled, or
at the option of the Company by giving the notice in any manner in which the
same might have been given if the death or bankruptcy had not occurred.
120. Notice of every general meeting shall be given in any manner hereinbefore
authorised to:
(a) every person shown as a Member in the register of Members as of
the record date for such meeting except that in the case of
joint holders the notice shall be sufficient if given to the
joint holder first named in the register of Members.
(b) every person upon whom the ownership of a share devolves by
reason of his being a legal personal representative or a trustee
in bankruptcy of a Member of record where the Member of record
but for his death or bankruptcy would be entitled to receive
notice of the meeting; and
No other person shall be entitled to receive notices of general meetings.
WINDING UP
121. If the Company shall be wound up the liquidator may, with the sanction of a
Special Resolution of the Company and any other sanction required by the
Statute, divide amongst the Members in specie or kind the whole or any part of
the assets of the Company (whether they shall consist of property of the same
kind or not) and may for such purpose set such value as he deems fair upon any
property to be divided as aforesaid and may determine how such division shall be
carried out as between the Members or different classes of Members. The
liquidator may with the like sanction, vest the whole or any part of such assets
in trustees upon such trusts for the benefit of the contributories as the
liquidator, with the like sanction, shall think fit, but so that no Member shall
be compelled to accept any shares or other securities whereon there is any
liability.
122. If the Company shall be wound up, and the assets available for distribution
amongst the Members as such shall be insufficient to repay the whole of the
paid-up capital, such assets shall be distributed so that, as nearly as may be,
the losses shall be borne by the Members in proportion to the capital paid up,
or which ought to have been paid up, at the commencement of the winding up on
the shares held by them respectively. And if in a winding up the assets
available for distribution amongst the Members shall be more than sufficient to
repay the whole of the capital paid up at the commencement of the winding up,
the excess shall be distributed amongst the Members in proportion to the capital
paid up at the commencement of the winding up on the shares held by them
respectively. This Article is to be without prejudice to the rights of the
holders of shares issued upon special terms and conditions.
INDEMNITY
123. The Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the affairs of the
Company and their heirs, executors, administrators and personal representatives
respectively shall be indemnified out of the assets of the Company from and
against all actions, proceedings, costs, charges, losses, damages and expenses
which they or any of them shall or may incur or sustain by reason of any act
done or omitted in or about the execution of their duty in their respective
offices or trusts, except such (if any) as they shall incur or sustain by or
through their own wilful neglect or default respectively and no such Director,
officer or trustee shall be answerable for the acts, receipts, neglects or
defaults of any other Director, officer or trustee or for joining in any receipt
for the sake of conformity or for the solvency or honesty of any banker or other
persons with whom any monies or effects belonging to the Company may be lodged
or deposited for safe custody or for any insufficiency of any security upon
which any monies of the Company may be invested or for any other loss or damage
due to any such cause as aforesaid or which may happen in or about the execution
of his office or trust unless the same shall happen through the wilful neglect
or default of such Director, Officer or trustee.
FINANCIAL YEAR
124. Unless the Directors otherwise prescribe, the financial year of the Company
shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
AMENDMENTS OF ARTICLES
125. Subject to the Statute, the Company may at any time and from time to time
by Special Resolution alter or amend these Articles in whole or in part.
TRANSFER BY WAY OF CONTINUATION
126. If the Company is exempted as defined in the Statute, it shall, subject to
the provisions of the Statute and with the approval of a Special Resolution,
have the power to register by way of continuation as a body corporate under the
laws of any jurisdiction outside the Cayman Islands and to be deregistered in
the Cayman Islands.
DATED the 4th day of September 1997
- ---------------------------------
Charles Jennings, Attorney-at-Law
PO Box 309
Grand Cayman, B.W.I.
- ---------------------------------
Gareth Griffiths, Attorney-at-Law
PO Box 309
Grand Cayman, B.W.I.
- -------------------------------------
Witness to the above signatures
Annette Eldemire, Corporate Assistant
PO Box 309
Grand Cayman, B.W.I.
I, _________________ Registrar of Companies in and for the Cayman Islands DO
HEREBY CERTIFY that this is a true and correct copy of the Articles of
Association of this Company duly incorporated on the ____day of _______ 1997.
--------------------------
REGISTRAR OF COMPANIES
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
Company No. 3419618
The Registrar of companies for England and Wales hereby certifies that
FUNJUST LIMITED
having by special resolution changed its name, is now incorporated under
the name of
MPI International Limited
Given at Companies House, London, the 22nd September 1997
MISS S. BASHAR
For the Registrar of Companies
CERTIFICATE OF INCORPORATION
OF
CINERGY SOLUTIONS, 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 shall be Cinergy Solutions, 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 formed under the General Corporation Law of the
State of Delaware.
FOURTH: The number of shares of stock which the corporation shall have
authority to issue is five hundred (500) shares of common stock, without par
value.
FIFTH: The name and mailing address of the incorporator is Rosemary E. Grieme,
139 East Fourth Street, Cincinnati, Ohio 45202.
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 corporation 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 10th day of February, 1997.
Rosemary E. Grieme
Sole Incorporator
BY-LAWS
OF
CINERGY
SOLUTIONS, INC.
February 11, 1997
By-Laws
(hereinafter called the "Corporation")
ARTICLE I
Offices
Section 1.1. Offices. The principal office of the Corporation shall be at 139
East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other
offices at such other places as the Board of Directors may from time to time
determine, or as the business of the Corporation may require.
ARTICLE II
Stockholders' Meetings
Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held
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 2.2. 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 forty-five (45) days prior to the meeting.
Section 2.3. Special Meetings. Special meetings of the stockholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer, or
the 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 the
express percentage, as provided by statute, 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 2.4. 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, at least twenty (20) days and not more than forty-five
(45) days prior to the meeting.
Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any
meeting of stockholders may be waived by the written assent of every stockholder
entitled to notice, filed with or entered upon the records of the meeting,
either before or after the holding thereof.
Section 2.6. Quorum. The holders of shares entitling them to exercise a majority
of the voting power, or, if the vote is to be taken by classes, the holders of
shares of each class entitling them to exercise a majority of the voting power
of that class, present in person or by proxy at any meeting of the stockholders,
unless otherwise specified by statute, shall constitute a quorum.
If, however, at any meeting of the stockholders, a quorum shall fail to attend
in person or by proxy, a majority in interest of the stockholders 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 (unless the meeting has been adjourned
for over thirty days), other than by announcement at the meeting at which such
adjournment is taken, until a quorum is 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 originally called.
Section 2.7. Voting. At each meeting of the stockholders, except as otherwise
provided by statute or the Certificate of Incorporation, every holder of record
of stock of the class or classes 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 stockholder and bearing a date, not later than such time as
expressly provided by statute, 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 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 as expressly provided by statute. (e.g., either the
date of the meeting, the date next proceeding the day of the meeting, or any
such similar governing time frame). Cumulative voting shall be permitted only as
expressly provided by statute.
At any meeting of stockholders, a list of stockholders 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 as
hereinbefore stated as expressly provided by statute) 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.
Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action
required or permitted by statute, the Certificate of Incorporation, or these
By-Laws, 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 written consent in lieu of a meeting, setting forth the action so
taken, shall be signed by all the stockholders entitled to vote thereon. 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 records of the Corporation. Any such written consent shall be
effective as of the effective date thereof as specified therein.
ARTICLE III
Directors
Section 3.1. Duties and Powers. The business and affairs 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, the Certificate of Incorporation, or these
By-Laws, directed or required to be exercised or done by the stockholders.
Section 3.2. Number and Election of Directors. The Board of Directors shall
consist of not less than three nor more than fifteen members, the exact number
of which shall be fixed by the Board of Directors. Directors shall be elected
annually by stockholders at their annual meeting, in a manner consistent with
statute and as provided in Article II, Section 2.8 of these By-Laws, and each
director so elected shall hold office until his/her successor is duly elected
and qualifies, or until his/her earlier resignation or removal. Any director may
resign at any time upon notice to the Corporation. Directors need not be
stockholders and shall fulfill the residency requirements as and if provided by
statute. Any director may be removed at any time with or without cause by a
majority vote of the stockholders, unless otherwise provided by statute.
Section 3.3. Vacancies. Vacancies and newly created directorships, resulting
from any increase in the authorized number of directors, may be filled by a
majority of the directors then in office, and the directors so chosen shall hold
office for the unexpired term of the predecessor and/or until the next annual
meeting of stockholders, and until their successors are duly elected and
qualify, or until their earlier resignation or removal.
Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at
such time, place, and upon such notice as the Board of Directors may from time
to time determine. Special meetings of the Board of Directors may be called by
the Chairman of the Board, the Chief Executive Officer, the President, or by
members of the board (the express percentage of the latter as minimally provided
for by statute). 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 3.5. Quorum. Except as may be otherwise specifically provided for by
statute, 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 3.6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation of the Corporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee(s) thereof, may be taken without a meeting, if all the members of the
Board of Directors, or of such committee(s), as the case may be, consent thereto
in writing, and the writing(s) is filed with the minutes of proceedings of the
Board of Directors, or of such committee(s), of the Corporation. Any such
written consent to action of the Board of Directors, or of such committee(s),
shall be effectuated by the signature of the member lastly consenting thereto in
writing, unless the consent otherwise specified a prior or subsequent effective
date.
Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation of the Corporation or these
By-Laws, members of the Board of Directors, or any committee(s) thereof, may
participate in a meeting of the Board of Directors, or of such committee(s), as
the case may be, 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 3.7 shall
constitute presence in person at such meeting.
Section 3.8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate, from time to time as they
may see fit, one or more committees, each such committee to consist of three or
more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any such 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/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 absent or disqualified
member. Any committee, to the extent allowed by statute 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 3.9. Compensation. 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 reasonable
compensation, which may include pension, disability and death benefits, as may
be determined from time to time by the Board of Directors. Reasonable
compensation may also be paid to any person other than a director officially
called to attend any such meeting.
Section 3.10. Contracts and Transactions Involving Directors. No contract or
transac tion 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: (i) the material facts as to
his/her 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/her 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 4.1. Officers. The officers of the Corporation shall consist of a
President, a Secretary, and a Treasurer, and may consist of a Chairman of the
Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents,
one or more Assistant Secretaries, and such other officers as the board shall
from time to time deem necessary. Any number of offices may be held by the same
person, unless otherwise prohibited by statute, the Certificate of
Incorporation, or these By-Laws.
Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its
first meeting held after each annual meeting of stockholders of the Corporation
(i.e., the annual organization meeting of the Board of Directors), shall appoint
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, and such officers shall hold office until their
successors are chosen and shall qualify, or until their earlier resignation or
removal from office. Any officer appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the board. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one,
shall be a director and shall preside at all meetings of the Board of Directors
and, in the absence or incapacity of the Chief Executive Officer and the
President, meetings of the stockholders, and shall, subject to the board's
direction and control, be the board's representative and medium of
communication, and shall have the general powers and duties as are incident to
the office of Chairman of the Board of a corporation.
Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be
one, shall preside at all meetings of the stockholders and, in the absence or
incapacity of the Chairman of the Board, meetings of the Board of Directors. The
Chief Executive Officer shall from time to time 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. Where the offices of Chief Executive
Officer and President are held by different individuals, the President will
report directly to the Chief Executive Officer.
Section 4.5. President. The President shall be the chief operating officer of
the Corporation, and 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, or of any committee(s) thereof, are carried fully into
effect, and shall have the general powers and duties of supervision and
management as are incident to the office of President of a corporation. In the
absence or incapacity of the Chief Executive Officer, the President also shall
be the chief executive officer of the Corporation.
Section 4.6. 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 (including by the Chairman of the Board), the Chief Executive Officer,
or the President shall exercise the powers and duties of the President.
Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board
of Directors and of the stockholders of the Corporation, and act as clerk
thereof, and record all votes and the minutes of all proceedings in a book to be
kept for that purpose, shall record all written business transactions, shall
perform like duties for the standing committees when required, and shall have
the general powers and duties as are incident to the office of Secretary of a
corporation. The Secretary shall give, or cause to be given, proper notice of
all meetings of the stockholders and of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, or the
President. The Secretary shall have custody of the seal, if there be one, of the
Corporation and the Secretary or any Assistant Secretary, 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/her signature). The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by statute to be kept or filed are properly kept or filed, as the case
may be.
Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in
his or her absence or incapacity 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 (including by the Chairman of the Board), the
Chief Executive Officer, the President, or the Secretary.
Section 4.8. 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 valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of
Directors, shall disburse the funds of the Corporation as may be ordered by the
Board of Directors (including by the Chairman of the Board), the Chief Executive
Officer, or the President, taking proper vouchers therefor, and shall render to
the President, the Chief Executive Officer, the Chairman of the Board, and/or
directors at any meeting of the board, or whenever they may require it, and to
the annual meeting of the stockholders, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation, and
shall have the general powers and duties as are incident to the office of
Treasurer of a corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond in a form and in such sum with surety as shall
be satisfactory to the Board of Directors for the faithful performance of his or
her duties as Treasurer and for the restoration to the Corporation, in the case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession, or under his or her control, and belonging to the Corporation. The
Treasurer shall perform such other duties as may be prescribed by the Board of
Directors (including by the Chairman of the Board), the Chief Executive Officer,
or the President.
Section 4.9. Comptroller. The Comptroller shall have control over all accounts
and records of the Corporation pertaining to moneys, properties, materials and
supplies, and shall have executive direction over the bookkeeping and accounting
functions and shall have the general powers and duties as are incident to the
office of comptroller of a corporation. The Comptroller shall perform such other
duties as may be prescribed by the Board of Directors (including by the Chairman
of the Board), the Chief Executive Officer, the President, or a Vice President.
Section 4.10. Other Officers. Such other officers of the Corporation as the
Board of Directors may appoint shall perform such duties and have such powers as
from time to time may be assigned to them by the board. The Board of Directors
may delegate to any other officer of the Corporation the power to appoint such
other officers and to prescribe their respective duties and powers.
ARTICLE V
Capital Stock
Section 5.1. 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 statute and the Certificate of Incorporation, as shall be
approved by the Board of Directors. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation,
by (i) either the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and (ii) by any one of the following officers: 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 shares and the date of issue, shall be entered on the Corporation's
books.
Section 5.2. Signatures. Any or all of the signatures on a certificate may be a
facsimile thereof. 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/she were such officer, transfer agent or registrar at the date of
issue.
Section 5.3. 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/her 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 certificate alleged to have
been lost, stolen or destroyed.
Section 5.4. Transfers. The capital stock of the Corporation shall be
transferable in the manner provided by statute and in these By-Laws. Transfers
of shares shall be made on the books of the Corporation only by the person named
in the certificate or by his/her attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, which shall be canceled before a
new certificate shall be issued.
Section 5.5. 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 enti tled 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 5.6. Beneficial Ownership Rights. 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
statute.
ARTICLE VI
Notices
Section 6.1. Notices. Whenever written notice is required by statute, 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 each such person, at his/her 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, or as otherwise provided by statute. Written notice may also be
given personally or by telegram, telex or cable.
Section 6.2. Waivers of Notice. Whenever any notice is required by statute, 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 7.1. Dividends. Dividends upon the capital stock of the Corporation,
subject to any provision imposed by the Certificate of Incorporation, may be
declared by the Board of Directors at any regular or special meeting, or by
written consent to the action of the board without such meeting(s), 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 7.2. 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 7.3. 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 Chief Executive Officer, the President, any
Vice President, the Secretary, or any Assistant Secretary, 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 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the
first day of January and end on the thirty-first day of December each year.
Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall
have inscribed thereon the name of the Corporation, the year of its
incorporation, the words "Corporate Seal" and "Delaware", and any such other
emblem or device as approved by the Board of Directors. 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
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than
Those By or in the Right of the Corporation. Subject to Section 8.3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
to 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/she 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/her in
connection with such action, suit or proceeding, if he/she acted in good faith
and in a manner he/she 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/her 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/she 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/her conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the
Right of the Corporation. Subject to Section 8.3 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 threat ened, 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/she 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 expenses (including attorneys' fees) actually and reasonably incurred by
him/her in connection with the defense or settlement of such action or suit if
he/she acted in good faith and in a manner he/she 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 for negligence or
misconduct in the performance of his/her duty to the Corporation, unless and
only to the extent that 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 shall deem proper.
Section 8.3. 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/she has met
the applicable standard of conduct set forth in Section 8.1 or Section 8.2 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/she shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him/her in connection
therewith, without the necessity of authorization in the specific case.
Any determination made by the disinterested directors or by independent legal
counsel under 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 Section 8.1 and 8.2 of this Article VIII, and, within ten days after
receipt of such notification, such persons shall have the right to petition the
court (at courts' discretion) in which such action or suit was brought to review
the reasonableness of such determination.
Section 8.4. Good Faith Defined. For purposes of any determination under Section
8.3 of this Article VIII, a person shall be deemed to have acted in good faith
and in a manner he/she 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/her conduct was
unlawful, if his/her action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him/her 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 8.4 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 8.4 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 8.1 or 8.2 of this Article VIII, as
the case may be.
Section 8.5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 8.3 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
8.1 and 8.2 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/she has met the applicable
standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as
the case may be. Neither a contrary determination in the specific case under
Section 8.3 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
8.5 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 8.6. Expenses Payable in Advance. Expenses incurred 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/she is not entitled to be indemnified by the Corporation
as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement 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 other provision of these By-Laws, or similarly entitled under any agreement,
contract, vote of stockholders or disinter ested directors, or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his/her 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 8.1 and
8.2 of this Article VIII shall be made to the fullest extent permitted by
statute. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 8.1 or 8.2 of
this Article VIII, but whom the Corporation has the power or obligation to
indemnify under the provisions of statute of the State of Delaware, or
otherwise.
Section 8.8. 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/her and incurred by him/her in any
such capacity, or arising out of his/her status as such, whether or not the
Corporation would have the power or the obligation to indemnify him/her against
such liability under the provisions of this Article VIII.
Section 8.9. 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/she 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/she reasonably believed to be in the best interests 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 8.10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses 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 8.11. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights
to indemnification (which shall be governed by Section 8.5 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.
The Corporation shall indemnify a director who was wholly successful, on merits
or otherwise, in the defense of any proceedings to which he/she was a party
because he/she was a director of the Corporation against reasonable expenses
incurred by him/her in connection with the proceeding.
Section 8.12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide
rights to indem nification 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 9.1. Amendments. These By-Laws may be altered, amended or repealed, in
whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of
a majority of the holders of record of the outstanding shares entitled to vote
thereon, or by the written consent of the holders of record of a two-thirds
majority of the outstanding shares entitled to vote thereon, except as such
alteration, amendment or repeal by any vote or written consent of the
stockholders is otherwise expressly prohibited by statute; or (ii) by a majority
vote of the Board of Directors, or by unanimous written consent of the board,
except as such alteration, amendment or repeal by any vote or action of the
board is otherwise expressly prohibited by statute.
ARTICLE X
Emergency By-Laws
Section 10.1. Emergency By-Laws. The Emergency By-Laws 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 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 provision to the contrary in
the preceding By-Laws, in the Certificate of Incorporation, or in the statute.
To the extent not inconsistent with the provisions of this Section 10.1, 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 to these Emergency By-Laws may make any further or different
provision that may be practical and necessary for the circumstance 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 or conference call shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any 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 the
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, the directors for such meeting.
No officer, director or employee acting in accordance with any provision of
these Emergency By-Laws shall be liable except for willful misconduct.
These Emergency By-Laws shall be subject to alteration, amendment or repeal by
the further actions of the Board of Directors or stockholders of the
Corporation.
CERTIFICATE OF FORMATION
OF
TRIGEN-CINERGY SOLUTIONS LLC
The undersigned, being natural persons of age eighteen years or more, acting as
organizers of a limited liability company under the Delaware Limited Liability
Company Act (as the same may be amended from time to time, the "Act"), adopt,
pursuant to Section 18-201 of the Act, the following Certificate of Formation
for such limited liability company (the "Company"):
ARTICLE I
NAME
The name of the Company shall be: Trigen-Cinergy Solutions LLC.
ARTICLE II
REGISTERED OFFICE, REGISTERED AGENT
The initial registered office of the Company shall be: c/o The Corporation Trust
Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such
other location as the Parties by mutual consent shall determine. The initial
registered agent of the Company shall be: c/o The Corporation Trust Company,
1209 Orange Street, Wilmington, New Castle County, Delaware, or such other
location as the Parties by mutual consent shall determine. Either the registered
officer or the registered agent may be changed in the manner provided by law.
ARTICLE III
PERIOD OF DURATION
The Company shall exist until dissolved according to law or by the
terms of the Operating Agreement (defined in Article VI).
ARTICLE IV
POWERS
Except as restricted by this Certificate of Formation, the Company shall have
any may exercise all powers and rights which a limited liability company may
exercise legally pursuant to the Act.
ARTICLE V
AMENDMENTS
The Company reserves the right to amend its Certificate of Formation from time
to time in accordance with the Act, provided, that the unanimous approval of the
members of the Company to such amendment has been duly obtained.
ARTICLE VI
ADOPTION OF OPERATING AGREEMENT
The initial Limited Liability Company Agreement of the Company (the "Operating
Agreement") shall be adopted by its members. The Operating Agreement may contain
any provisions for the regulation and management of the affairs of the Company
not inconsistent with law or this Certificate of Formation.
The undersigned does hereby certify, make and acknowledge this Certificate of
Formation on this 18th day of February, 1997.
Catherine D. Ledyard
Catherine D. Ledyard
Authorized Person
ARTICLES OF ORGANIZATION
OF
TRIGEN-CINERGY SOLUTIONS OF CINCINNATI LLC
The undersigned, for the purpose of organizing a limited liability
company under Chapter 1705 of the Ohio Revised Code, states the following:
FIRST: The name of said limited liability company shall be:
Trigen-Cinergy Solutions of Cincinnati LLC.
SECOND: This limited liability company shall exist until
dissolved according to law or by the terms of an applicable operating
agreement.
THIRD: The address to which interested persons may direct
requests for copies of any operating agreement and any by-laws of this
limited liability company is: 105 East Fourth Street, Suite 1003,
Cincinnati, Ohio 45202.
IN WITNESS WHEREOF, I have hereunto subscribed my name, as an
authorized representative of the members of this limited liability company, this
28th day of July 1997.
Signed: ________________________
Rosemary E. Grieme, Esq.
Authorized Representative
<PAGE>
ORIGINAL APPOINTMENT OF AGENT
(for limited liability company)
The undersigned, acting as an authorized representative of the members of
Trigen-Cinergy Solutions of Cincinnati LLC, hereby appoints C T Corporation
System to be the agent upon whom any process, notice or demand required or
permitted by statute to be served upon the limited liability company may be
served. The complete address of the agent is:
441 Vine Street, Cincinnati, Ohio 45202.
- ------------------------
Rosemary E. Grieme, Esq.
Authorized Representative
ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for Trigen-Cinergy
Solutions of Cincinnati LLC, hereby acknowledges and accepts the appointment of
agent for said limited liability company.
C T CORPORATION SYSTEM, as
statutory agent
By:______________________
Name:
Title:
Date: July 28, 1997
CERTIFICATE OF FORMATION
OF
TRIGEN-CINERGY SOLUTIONS OF ILLINOIS L.L.C.
The undersigned, being a natural person of age eighteen years or more,
acting as organizer of a limited liability company under the Delaware Limited
Liability Company Act (as the same may be amended from time to time, the "Act"),
adopts, pursuant to Section 18-201 of the Act, the following Certificate of
Formation for such limited liability company (the "Company"):
ARTICLE I
NAME
The name of the Company shall be: Trigen-Cinergy Solutions of Illinois
L.L.C.
ARTICLE II
REGISTERED OFFICE, REGISTERED AGENT
The initial registered office of the Company shall be: c/o The Corporation
Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or
such other location as the Parties by mutual consent shall determine. The
initial registered agent of the Company shall be: c/o The Corporation Trust
Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such
other location as the Parties by mutual consent shall determine. Either the
registered officer or the registered agent may be changed in the manner provided
by law.
ARTICLE III
PERIOD OF DURATION
The Company shall exist until dissolved according to law or by the
terms of the Company's Operating Agreement.
ARTICLE IV
POWERS
Except as restricted by this Certificate of Formation, the Company
shall have any may exercise all powers and rights which a limited liability
company may exercise legally pursuant to the Act.
ARTICLE V
AMENDMENTS
The Company reserves the right to amend its Certificate of Formation
from time to time in accordance with the Act, provided, that the unanimous
approval of the members of the Company to such amendment has been duly obtained.
ARTICLE VI
ADOPTION OF OPERATING AGREEMENT
The initial Limited Liability Company Agreement of the Company (the
"Operating Agreement") shall be adopted by its members. The Operating Agreement
may contain any provisions for the regulation and management of the affairs of
the Company not inconsistent with law or this Certificate of Formation.
The undersigned does hereby certify, make and acknowledge this
Certificate of Formation on this 14th day of April, 1997.
--------------------------------
Vincent J. Farago
Authorized Person
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Cinergy Corp. Annual Report (Form U5S) to the Securities and
Exchange Commission, filed pursuant to the Public Utility Holding Company Act of
1935, for the year ended December 31, 1997, of our report dated January 27,
1998, on the consolidated financial statements of Cinergy Corp. and subsidiaries
and of certain of its subsidiaries (The Cincinnati Gas & Electric Company, PSI
Energy, Inc. and the Union Light, Heat and Power Company), included in the
combined Annual Report (Form 10-K) to the Securities and Exchange Commission of
Cinergy Corp. and its subsidiaries and of certain of its subsidiaries for the
year ended December 31, 1997. It should be noted that we have performed no audit
procedures subsequent to January 27, 1998, the date of our report. Furthermore,
we have not audited any financial statements of Cinergy Corp. and its
subsidiaries as of any date or for any period subsequent to December 31, 1997.
Arthur Andersen LLP
Cincinnati, Ohio
April 28, 1998
Exhibit F-10
ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND
SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES
Directors' and Executive Officers' Compensation
PSI (including subsidiaries)
William J. Grealis is also a director and officer of PSI Energy Argentina. See
Cinergy's disclosure on pages 9 through 19 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 12-22 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, 1997, is set forth in
the following table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3)
---------------------------- --------------------------- ---------
Neil A. Armstrong 8,250 shares
James K. Baker 21,105 shares 4,257
Michael G. Browning 26,335 shares 7,765
Phillip R. Cox 7,738 shares
Kenneth M. Duberstein 20,491 shares
Cheryl M. Foley 76,943 shares
William J. Grealis 86,313 shares
John A. Hillenbrand II 35,759 shares 7,640
George C. Juilfs 11,250 shares
J. Wayne Leonard 140,961 shares
John M. Mutz 103,485 shares
Melvin Perelman 20,232 shares 7,213
Thomas E. Petry 9,500 shares
Jackson H. Randolph 152,426 shares
James E. Rogers 339,254 shares
John J. Schiff, Jr. 48,559 shares (4)
Philip R. Sharp 3,500 shares
Van P. Smith 24,890 shares
Dudley S. Taft 10,500 shares
Larry E. Thomas 130,366 shares
Oliver W. Waddell 12,096 shares
All directors and executive officers
as a group 1,672,042 shares (2)
(representing 1.06% of the class)
- -----------
(1) No individual listed beneficially owned more than 0.22% of the outstanding
shares of Cinergy's common stock.
<PAGE>
Exhibit F-10
ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND
SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES
(continued)
(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-7,500; Mr.
Baker-20,287; Mr. Browning-20,287; Mr. Cox-7,500; Mr. Duberstein-20,287; Ms.
Foley-20,000; Mr. Grealis-55,887; Mr. Hillenbrand- 20,287; Mr. Juilfs-7,500; Mr.
Leonard-97,611; Mr. Mutz-72,787; Dr. Perelman- 7,500; Mr. Petry-7,500; Mr.
Randolph-50,000; Mr. Rogers-145,629; Mr. Schiff- 7,500; Dr. Sharp-2,500; Mr.
Smith-20,287; Mr. Taft-7,500; Mr. Thomas-74,104; and all directors and executive
officers as a group-856,679.
(3) Each unit represents one share of Cinergy's common stock credited to the
account of the respective directors as of December 31, 1997, 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 1,791,000 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
pages 12-22 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, 1997. The
beneficial ownership of the outstanding shares of Cinergy's common stock held by
each director and named executive officer as of December 31, 1997, is set forth
in the following table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2)
- ---------------------------- ---------------------------
William J. Grealis 86,313 shares
J. Wayne Leonard 140,961 shares
Jackson H. Randolph 152,426 shares
James E. Rogers 339,254 shares
Larry E. Thomas 130,366 shares
All directors and executive officers as a group 1,055,528 shares (2)
(representing 0.67%
of the class)
- -----------
(1) No individual listed beneficially owned more than 0.22% 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. Grealis-55,887; Mr.
Leonard-97,611; Mr. Randolph-50,000; Mr. Rogers-145,629; Mr. Thomas-74,104; and
all directors and executive officers as a group- 497,698.
<PAGE>
Exhibit F-10
ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND
SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES
(continued)
PSI (including subsidiaries)
PSI's (and subsidiaries') director-nominees and named executive officers (as
identified on pages 12-22 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,
1997. 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, 1997, is set forth in the following
table.
Amount and Nature
Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3)
- ---------------------------- --------------------------- ---------
James K. Baker 21,105 shares 4,257
Michael G. Browning 26,335 shares 7,765
John A. Hillenbrand II 35,759 shares 7,640
J. Wayne Leonard 140,961 shares
John M. Mutz 103,485 shares
Jackson H. Randolph 152,426 shares
James E. Rogers 339,254 shares
Van P. Smith 24,890 shares
Larry E. Thomas 130,366 shares
All directors and executive officers
as a group 1,262,487 shares (2)
(representing 0.80% of the class)
- -----------
(1) No individual listed beneficially owned more than 0.22% of the outstanding
shares of Cinergy's common stock.
William J. Grealis is also a director and officer of PSI Energy
Argentina. See Cinergy's disclosure on page 9 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- 20,287; Mr.
Browning-20,287; Mr. Hillenbrand-20,287; Mr. Leonard-97,611; Mr. Mutz-72,787;
Mr. Randolph-50,000; Mr. Rogers-145,629; Mr. Smith-20,287; Mr. Thomas-74,104;
and all directors and executive officers as a group-651,635.
As indicated in Note 1 above, William J. Grealis is also a director and
officer of PSI Energy Argentina. See Cinergy's disclosure on page 10 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, 1997 under Cinergy's
Directors' Deferred Compensation Plan.
Exhibit H
Subsidiary Listing
The following is a listing, as of December 31, 1997, of the subsidiaries of each
registrant and their state of incorporation or organization indented to show
degree of remoteness from registrant.
State or Country of
Organization or
Name of Company 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
Cinergy-Cadence, Inc. Indiana
Cadence Network LLC (33 1/3%) Delaware
Cinergy Capital & Trading, Inc. Indiana
CinCap IV, LLC Delaware
Cinergy Communications, Inc. Delaware
Cinergy Engineering, Inc. Ohio
Cinergy International, Inc. Indiana
Cinergy Global Power, Inc. Delaware
Cinergy MPI I, Inc. Cayman Islands
Cinergy MPI II, Inc. Cayman Islands
Cinergy MPI III, Inc. Cayman Islands
Cinergy MPI IV, Inc. Cayman Islands
Cinergy MPI V, Inc. Cayman Islands
Cinergy MPI VI, Inc. Cayman Islands
Cinergy MPI VII, Inc. Cayman Islands
Cinergy MPI VIII, Inc. Cayman Islands
Cinergy MPI IX, Inc. Cayman Islands
Cinergy MPI X, Inc. Cayman Islands
Cinergy MPI XI, Inc. Cayman Islands
Cinergy MPI XII, Inc. Cayman Islands
Cinergy MPI XIII, Inc. Cayman Islands
Cinergy MPI XIV, Inc. Cayman Islands
Cinergy MPI XV, Inc. Cayman Islands
MPII (Zambia) B.V. The Netherlands
Copperbelt Energy Corporation plc (39%)* Zambia
MPI International Limited England
Cinergy Resources, Inc. Delaware
Cinergy Solutions, Inc. Delaware
(In Illinois d/b/a Cinergy Solutions of Illinois, Inc.,
In Ohio d/b/a Cinergy Solutions of Ohio, Inc.)
Trigen-Cinergy Solutions LLC (50%) Delaware
Trigen-Cinergy Solutions of Cincinnati LLC (51%) Ohio
Trigen-Cinergy Solutions of Illinois L.L.C. (49%) Delaware
Cinergy Technology, Inc. Indiana
Cinergy UK, Inc. Delaware
Avon Energy Partners Holdings (50%) England
Avon Energy Partners PLC England
Midlands Electricity plc* England
Enertech Associates, Inc. Ohio
PSI Argentina, Inc. Indiana
Costanera Power Corp. Indiana
PSI Power Resource Development, Inc. Indiana
PSI Sunnyside, Inc. Indiana
PSI T&D International, Inc. Indiana
PSI Yacyreta, Inc. Indiana
* FUCO
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI Energy,
Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/
------------------------------------------------------------------
OPERATING REVENUES
Electric
Non-affiliated companies $ - $ - $ 1,920,915 $ 1,940,783
Affiliated companies - 35,341 17,686
Gas
Non-affiliated companies - - 491,145 -
Affiliated companies - 4,475
Other - 483,823 - -
------------ ------------ ----------------- ------------
- 483,823 2,451,876 1,958,469
OPERATING EXPENSES
Fuel used in electric production - - 300,487 392,948
Gas purchased - - 266,123 -
Purchased and exchanged power
Non-affiliated companies - - 583,065 636,293
Affiliated companies - - 12,473 29,932
Other operation - 468,739 308,239 344,878
Maintenance - - 90,097 86,374
Depreciation - 920 163,418 125,659
Amortization of phase-in deferrals - - 13,483 -
Post-in-service deferred operating
expenses - net - - 3,290 1,072
Income taxes - - 172,047 76,890
Taxes other than income taxes - 12,333 211,303 53,721
------------ ------------ ----------------- ------------
- 481,992 2,124,025 1,747,767
OPERATING INCOME - 1,831 327,851 210,702
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used during
construction - - 98 -
Post-in-service carrying costs - - - -
Phase-in deferred return - - 8,008 -
Equity in earnings of consolidated
subsidiaries 284,596 - - -
Equity in earnings of unconsolidated
subsidiaries - - - -
Income taxes 3,314 - 33,286 (1,039)
Other - net (2,660) (472) (14,262) 6,997
------------ ------------ ----------------- ------------
285,250 (472) 27,130 5,958
INCOME BEFORE INTEREST AND OTHER CHARGES 285,250 1,359 354,981 216,660
INTEREST AND OTHER CHARGES
Interest on long-term debt - - 110,134 71,638
Other interest 32,012 1,359 10,327 13,584
Allowance for borrowed funds used during
construction - - (4,633) (767)
Preferred dividend requirements of
subsidiaries - - - -
------------ ------------ ----------------- ------------
32,012 1,359 115,828 84,455
NET INCOME BEFORE EXTRAORDINARY ITEM 253,238 - 239,153 132,205
Extraordinary Item - equity share of
windfall profits tax (less applicable
income taxes of $0)
Preferred Dividend Requirement - - 868 11,701
------------ ------------ ----------------- ------------
NET INCOME $ 253,238 $ - $ 238,285 $ 120,504
AVERAGE COMMON SHARES OUTSTANDING
EARNINGS PER COMMON SHARE
Net income before extraordinary item
Extraordinary item
Net income
EARNINGS PER COMMON SHARE -
ASSUMING DILUTION
Net income before extraordinary item
Extraordinary item
Net income
DIVIDENDS DECLARED PER COMMON SHARE
<FN>
1/ See accompanying consolidating statements of income (loss).
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF INCOME (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands, except per share amounts)
<S> <C> <C> <C>
Consolidated
Cinergy Consolidated
Investments, Inc. Eliminations Cinergy Corp.
--------------------------------------------------
OPERATING REVENUES
Electric
Non-affiliated companies $ - $ - $ 3,861,698
Affiliated companies - (53,027) -
Gas
Non-affiliated companies - - 491,145
Affiliated companies (4,475) -
Other - (483,823) -
-------------- ------------ ------------
- (541,325) 4,352,843
OPERATING EXPENSES
Fuel used in electric production - - 693,435
Gas purchased - 35 266,158
Purchased and exchanged power
Non-affiliated companies - - 1,219,358
Affiliated companies - (42,405) -
Other operation - (483,911) 637,945
Maintenance - - 176,471
Depreciation - (920) 289,077
Amortization of phase-in deferrals - - 13,483
Post-in-service deferred operating
expenses - net - - 4,362
Income taxes - - 248,937
Taxes other than income taxes - (12,333) 265,024
-------------- ------------ ------------
- (539,534) 3,814,250
OPERATING INCOME - (1,791) 538,593
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used during
construction - - 98
Post-in-service carrying costs - - -
Phase-in deferred return - - 8,008
Equity in earnings of consolidated
subsidiaries - (284,596) -
Equity in earnings of unconsolidated
subsidiaries 60,392 - 60,392
Income taxes 376 - 35,937
Other - net (15,483) (5,622) (31,502)
-------------- ------------ ------------
45,285 (290,218) 72,933
INCOME BEFORE INTEREST AND OTHER CHARGES 45,285 (292,009) 611,526
INTEREST AND OTHER CHARGES
Interest on long-term debt - - 181,772
Other interest 10,078 (7,413) 59,947
Allowance for borrowed funds used
during construction - - (5,400)
Preferred dividend requirements of
subsidiaries - 12,569 12,569
-------------- ------------ ------------
10,078 5,156 248,888
NET INCOME BEFORE EXTRAORDINARY ITEM 35,207 (297,165) 362,638
Extraordinary Item - equity share of
windfall profits tax (less applicable
income taxes of $0) (109,400) - (109,400)
Preferred Dividend Requirement - (12,569) -
-------------- ------------ ------------
NET INCOME $ (74,193) $ (284,596) $ 253,238
AVERAGE COMMON SHARES OUTSTANDING 157,685
EARNINGS PER COMMON SHARE
Net income before extraordinary item $2.30
Extraordinary item $0.69
Net income $1.61
EARNINGS PER COMMON SHARE -
ASSUMING DILUTION
Net income before extraordinary item $2.28
Extraordinary item $0.69
Net income $1.59
DIVIDENDS DECLARED PER COMMON SHARE $1.80
<FN>
1/ See accompanying consolidating statements of income (loss).
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI Energy,
Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/
----------------------------------------------------------------------
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $ - $ - $ 4,700,631 $ 4,280,551
Gas - - 746,903 -
Common - - 186,078 -
-------------- --------------- ------------------ --------------
- - 5,633,612 4,280,551
Accumulated depreciation - - 2,008,005 1,792,317
-------------- --------------- ------------------ --------------
- - 3,625,607 2,488,234
Construction work in progress - - 118,133 65,129
-------------- --------------- ------------------ --------------
Total utility plant - - 3,743,740 2,553,363
CURRENT ASSETS
Cash and temporary cash investments 11,491 - 2,349 18,169
Restricted deposits - - 1,173 1,146
Notes receivable from affiliated companies 447 - 27,193 21,998
Accounts receivable - net 218 339 193,549 198,008
Accounts receivable from affiliated companies 80,818 19,534 35,507 6,384
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - - 29,682 28,234
Gas stored for current use - - 29,174 -
Other materials and supplies - - 49,111 26,955
Prepayments and other 1,540 - 31,827 4,438
-------------- --------------- ------------------ --------------
94,514 19,873 399,565 305,332
OTHER ASSETS
Regulatory assets
Amounts due from customers - income taxes - - 350,515 23,941
Post-in-service carrying costs and
deferred operating expenses - - 134,672 43,832
Coal contract buyout costs - - - 122,485
Deferred demand-side management costs - - 38,318 71,278
Phase-in deferred return and depreciation - - 89,689 -
Deferred merger costs - - 16,557 73,789
Unamortized costs of reacquiring debt - - 36,575 29,667
Other - - 1,439 44,094
Investments in consolidated subsidiaries 3,055,985 - - -
Investments in unconsolidated subsidiaries - - - -
Other 3,668 19,619 103,368 138,650
-------------- --------------- ------------------ --------------
3,059,653 19,619 771,133 547,736
$ 3,154,167 $ 39,492 $ 4,914,438 $ 3,406,431
<FN>
1/ See accompanying consolidating balance sheets.
</FN>
</TABLE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING BALANCE SHEET (CONTINUED)
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C>
Consolidated
Cinergy
Investments, Consolidated
Inc. 1/ Eliminations Cinergy Corp.
------------------------------------------------
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $ - $ - $ 8,981,182
Gas - - 746,903
Common - - 186,078
------------- ---------------- ---------------
- - 9,914,163
Accumulated depreciation - - 3,800,322
------------- ---------------- ---------------
- - 6,113,841
Construction work in progress - - 183,262
------------- ---------------- ---------------
Total utility plant - - 6,297,103
CURRENT ASSETS
Cash and temporary cash investments 21,301 - 53,310
Restricted deposits - - 2,319
Notes receivable from affiliated companies - (49,638) -
Accounts receivable - net 21,511 1 413,626
Accounts receivable from affiliated companies - (142,243) -
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - - 57,916
Gas stored for current use - - 29,174
Other materials and supplies - - 76,066
Prepayments and other 366 - 38,171
------------- ---------------- ---------------
43,178 (191,880) 670,582
OTHER ASSETS
Regulatory assets
Amounts due from customers - income taxes - - 374,456
Post-in-service carrying costs and
deferred operating expenses - - 178,504
Coal contract buyout costs - - 122,485
Deferred demand-side management costs - - 109,596
Phase-in deferred return and depreciation - - 89,689
Deferred merger costs - - 90,346
Unamortized costs of reacquiring debt - - 66,242
Other - - 45,533
Investments in consolidated subsidiaries - (3,055,985) -
Investments in unconsolidated subsidiaries 537,720 - 537,720
Other 15,028 (4,436) 275,897
------------- ---------------- ---------------
552,748 (3,060,421) 1,890,468
$ 595,926 $ (3,252,301) $ 8,858,153
<FN>
1/ See accompanying consolidating balance sheets.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI Energy,
Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/
------------- -------------- --------------------- --------------
COMMON STOCK EQUITY
Common stock - $.01 par value; authorized
shares 600,000,000; outstanding shares -
157,744,658 $ 1,577 $ - $ - $ -
Common stock of subsidiaries - - 762,136 539
Paid-in capital 1,573,064 - 534,649 400,893
Retained earnings (deficit) 965,084 - 313,803 636,228
Cumulative foreign currency translation adjustment (525) - - -
------------- ------------- ------------------ --------------
Total common stock equity 2,539,200 - 1,610,588 1,037,660
CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES
Not subject to mandatory redemption - - 20,793 157,196
LONG-TERM DEBT - - 1,324,432 826,470
------------- ------------- ------------------ --------------
Total capitalization 2,539,200 - 2,955,813 2,021,326
CURRENT LIABILITIES
Long-term debt due within one year - - - 85,000
Notes payable and other short-term obligations 600,428 - 289,000 190,600
Notes payable to affiliated companies - 20,950 12,253 16,435
Accounts payable 447 15,547 249,538 212,833
Accounts payable to affiliated companies 15,551 2,274 10,821 41,326
Accrued taxes (14,653) 1,232 149,129 69,304
Accrued interest (256) - 25,430 21,369
Other - - 29,950 2,560
------------- ------------- ------------------ -------------
601,517 40,003 766,121 639,427
OTHER LIABILITIES
Deferred income taxes 13,291 (651) 794,396 403,535
Unamortized investment tax credits - - 116,966 49,296
Accrued pension and other postretirement
benefit costs - - 180,566 116,576
Other 159 140 100,576 176,271
------------- ------------- ------------------ -------------
13, 450 (511) 1,192,504 745,678
$ 3,154,167 $ 39,492 $ 4,914,438 $ 3,406,431
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING BALANCE SHEET (CONTINUED)
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C>
Consolidated
Cinergy
Investments, Consolidated
Inc. 1/ Eliminations Cinergy Corp.
-------------- --------------- ---------------
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - $.01 par value; authorized
shares 600,000,000; outstanding shares -
157,744,658 $ - $ - $ 1,577
Common stock of subsidiaries - (762,675) -
Paid-in capital 481,753 (1,417,295) 1,573,064
Retained earnings (deficit) (68,905) (881,126) 965,084
Cumulative foreign currency translation adjustment (262) 262 (525)
-------------- --------------- ---------------
Total common stock equity 412,586 (3,060,834) 2,539,200
CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES
Not subject to mandatory redemption - - 177,989
LONG-TERM DEBT - - 2,150,902
-------------- --------------- ---------------
Total capitalization 412,586 (3,060,834) 4,868,091
CURRENT LIABILITIES
Long-term debt due within one year - - 85,000
Notes payable and other short-term obligations 34,000 - 1,114,028
Notes payable to affiliated companies - (49,638) -
Accounts payable 9,443 908 488,716
Accounts payable to affiliated companies 72,270 (142,242) -
Accrued taxes (17,979) - 187,033
Accrued interest 79 - 46,622
Other 46,683 - 79,193
-------------- --------------- ---------------
144,496 (190,972) 2,000,592
OTHER LIABILITIES
Deferred income taxes 38,467 (495) 1,248,543
Unamortized investment tax credits - - 166,262
Accrued pension and other postretirement
benefit costs - - 297,142
Other 377 - 277,523
-------------- --------------- ---------------
38,844 (495) 1,989,470
$ 595,926 $ (3,252,301) $ 8,858,153
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY
(dollars in thousands)
<S> <C> <C> <C> <C>
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI
Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. 1/
---------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1996 $ 2,584,454 $ - $ 1,545,815 $ 1,029,575
Net Income (loss) 253,238 - 239,153 132,205
Issuance of 65,529 shares of common
stock - net 2,066 - - -
Contributions from parent company - - - -
Treasury shares purchased (46,210) - - -
Treasury shares reissued 26,740 - - -
Dividends on preferred stock - - (871) (11,795)
Dividends on common stock (283,866) - (170,400) (113,600)
Translation adjustments (394) - - -
Other 3,172 - (3,109) 1,275
------------------- ------------------ ------------------ --------------
BALANCE AT DECEMBER 31, 1997 $ 2,539,200 $ - $ 1,610,588 $ 1,037,660
1/ See accompanying consolidating statements of changes in common stock equity.
2/ Par values, authorized shares, and outstanding shares are as follows:
Par Value Authorized Shares Outstanding Shares
------------------- ------------------ ------------------
(in thousands)
---------------------------------------
Cinergy $0.01 600,000 157,745
CG&E $8.50 120,000 89,663
PSI $0.01 stated 60,000 53,914
value
Services $0.05 - 3/ - 3/
Investments $0.01 - 3/ - 3/
3/ Services and Investments each have authority to issue 100 share of common
stock. At December 31, 1997, Services and Investments had 50 shares and 100
shares, respectively, outstanding.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (CONTINUED)
(dollars in thousands)
<S> <C> <C> <C>
Consolidated
Cinergy Consolidated
Investments, Inc. 1/ Eliminations Cinergy Corp.
---------------------------------------------------------
BALANCE AT DECEMBER 31, 1996 $ 531,057 $ (3,106,447) $ 2,584,454
-
Net Income (loss) (74,193) (297,165) 253,238
Issuance of 65,529 shares of common
stock - net - - 2,066
Contributions from parent company (33,720) 33,720 -
Treasury shares purchased - - (46,210)
Treasury shares reissued - - 26,740
Dividends on preferred stock - 12,666 -
Dividends on common stock (10,427) 294,427 (283,866)
Translation adjustments (131) 131 (394)
Other - 1,834 3,172
--------------- ---------------- ---------------
BALANCE AT DECEMBER 31, 1997 $ 412,586 $ (3,060,834) $ 2,539,200
1/ See accompanying consolidating statements of changes in common stock equity.
2/ Par values, authorized shares, and outstanding shares are as follows:
Par Value Authorized Shares Outstanding Shares
------------------- ------------------ ------------------
(in thousands)
---------------------------------------
Cinergy $0.01 600,000 157,745
CG&E $8.50 120,000 89,663
PSI $0.01 stated 60,000 53,914
value
Services $0.05 - 3/ - 3/
Investments $0.01 - 3/ - 3/
3/ Services and Investments each have authority to issue 100 share of common
stock. At December 31, 1997, Services and Investments had 50 shares and 100
shares, respectively, outstanding.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C> <C>
Consolidated Consolidated
Cinergy The Cincinnati Gas PSI
Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. 1/
---------------------------------------------------------------------------
Operating Activities
Net income (loss) $ 253,238 $ - $ 239,153 $ 132,205
Items providing or (using) cash:
Depreciation - 920 163,418 125,659
Deferred income taxes and investment tax
credits - net 56 - 16,443 35,661
Equity in earnings of unconsolidated subsidiaries
Extraordinary item - equity share of windfall
profits tax
Allowance for equity funds used during
construction - - (98) -
Regulatory assets - net - - 32,822 38,488
Changes in current assets and current
liabilities
Restricted deposits - - (2) (596)
Accounts receivable, net of reserves on
receivables sold (70,557) (5,039) (105,829) (149,290)
Materials, supplies, and fuel - - 6,872 14,944
Accounts payable (9,795) 5,018 81,569 126,979
Litigation settlement - - - -
Accrued taxes and interest (1,445) 3,799 (272) (6,578)
Other items - net 26,768 (821) 4,629 14,630
-------------- ------------- ----------------- --------------
Net cash provided by
operating activities 198,265 3,877 438,705 332,102
Financing Activities
Issuance of common stock 2,066 - - -
Issuance of long-term debt - - 100,062 -
Funds on deposit from issuance of long-term debt - - - -
Retirement of preferred stock of subsidiaries - - (234) (16,035)
Redemption of long-term debt - - (290,612) (45,700)
Change in short-term debt 91,421 2,461 86,662 22,120
Dividends on preferred stock (871) (11,795)
Dividends on common stock (283,866) - (170,400) (113,600)
-------------- ------------- ----------------- --------------
Net cash provided by (used in)
financing activities (190,379) 2,461 (275,393) (165,010)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) - (13,347) (156,499) (141,552)
Deferred demand-side management costs - - (9,584) (10,282)
Investment in unconsolidated subsidiary
-------------- ------------- ----------------- --------------
Net cash used in
investing activities - (13,347) (166,083) (151,834)
Net increase (decrease) in cash and
temporary cash investments 7,886 (7,009) (2,771) 15,258
Cash and temporary cash investments at
beginning of period 3,605 7,009 5,120 2,911
-------------- ------------- ----------------- --------------
Cash and temporary cash investments at
end of period $ 11,491 $ - $ 2,349 $ 18,169
1/ See accompanying consolidating statements of cash flows.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CINERGY CORP.
CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C>
Consolidated
Cinergy Consolidated
Investments, Inc. 1/ Eliminations Cinergy Corp.
----------------------------------------------------------
Operating Activities
Net income (loss) $ (74,193) $ (297,165) $ 253,238
Items providing or (using) cash:
Depreciation - (920) 289,077
Deferred income taxes and investment tax
credits - net 15,478 - 67,638
Equity in earnings of unconsolidated subsidiaries (35,239) (35,239)
Extraordinary item - equity share of windfall
profits tax 109,400 109,400
Allowance for equity funds used during
construction - - (98)
Regulatory assets - net - - 71,310
Changes in current assets and current
liabilities
Restricted deposits - - (598)
Accounts receivable, net of reserves on
receivables sold 4,074 109,484 (217,157)
Materials, supplies, and fuel 1 - 21,817
Accounts payable 71,254 (91,729) 183,296
Litigation settlement - - -
Accrued taxes and interest (16,918) - (21,414)
Other items - net (15,122) 2,091 32,175
---------------- -------------- ------------
Net cash provided by
operating activities 58,735 (278,239) $753,445
Financing Activities
Issuance of common stock - - 2,066
Issuance of long-term debt - - 100,062
Funds on deposit from issuance of long-term debt - - -
Retirement of preferred stock of subsidiaries - - (16,269)
Redemption of long-term debt - - (336,312)
Change in short-term debt 7,000 (17,853) 191,811
Dividends on preferred stock 12,666 -
Dividends on common stock (10,427) 294,427 (283,866)
---------------- -------------- ------------
Net cash provided by (used in)
financing activities (3,427) 289,240 (342,508)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (5,657) (11,000) (328,055)
Deferred demand-side management costs - (1) (19,867)
Investment in unconsolidated subsidiary (29,032) (29,032)
---------------- -------------- ------------
Net cash used in
investing activities (34,689) (11,001) (376,954)
Net increase (decrease) in cash and
temporary cash investments 20,619 - 33,983
Cash and temporary cash investments at
beginning of period 682 - 19,327
---------------- -------------- ------------
Cash and temporary cash investments at
end of period $ 21,301 $ - $ 53,310
<FN>
1/ See accompanying consolidating statements of cash flows.
</FN>
</TABLE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(dollars in thousands, except per share amounts)
<S> <C> <C> <C> <C>
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and
& Electric Company Power Company Gas Company Electric Company
----------------------------------------------------------------------
OPERATING REVENUES
Electric
Non-affiliated companies $ 1,727,640 $ 192,774 $ - $ 501
Affiliated companies 180,492 - - -
Gas
Non-affiliated companies 403,953 78,502 8,503 -
Affiliated companies 4,543 346 - -
---------------- ------------ ----------- ----------
2,316,628 271,622 8,503 501
OPERATING EXPENSES
Fuel used in electric production 299,703 - - -
Gas purchased 217,672 44,354 5,075 -
Purchased and exchanged power -
Non-affiliated companies 583,065 -
Affiliated companies 12,538 145,906 - 330
Other operation 274,885 31,153 1,509 62
Maintenance 84,254 5,764 79 -
Depreciation 150,414 12,369 436 19
Amortization of phase-in deferrals 13,483 - - -
Amortization of post-in-service
deferred operating expenses 3,290 - - -
Income taxes 161,896 9,586 352 10
Taxes other than income taxes 206,883 4,055 325 11
--------------- ------------ ----------- ----------
2,008,083 253,187 7,776 432
OPERATING INCOME 308,545 18,435 727 69
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - 97 1 -
Phase-in deferred return 8,008 - - -
Equity in earnings of subsidiaries 14,126 - - -
Income taxes 32,596 1,100 9 5
Other - net (11,413) (1,947) (19) (13)
--------------- ------------ ----------- ----------
43,317 (750) (9) (8)
INCOME BEFORE INTEREST 351,862 17,685 718 61
INTEREST
Interest on long-term debt 106,492 3,523 119 -
Other interest 9,529 1,396 39 1
Allowance for borrowed funds used
during construction (3,312) (151) (6) -
--------------- ------------ ----------- ----------
112,709 4,768 152 1
NET INCOME 239,153 12,917 566 60
PREFERRED DIVIDEND REQUIREMENT 868 - - -
---------------- ------------ ------------- ----------
NET INCOME APPLICABLE TO COMMON STOCK $ 238,285 $ 12,91785 $ 566 $ 60
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF INCOME (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1997
(dollars in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
Consolidated
Miami Tri-State KO The Cincinnati Gas
Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company
-----------------------------------------------------------------------------------------
OPERATING REVENUES
Electric
Non-affiliated companies $ - $ - $ - $ - $ 1,920,915
Affiliated companies 27 - - (145,178) 35,341
Gas
Non-affiliated companies - - 222 (35) 491,145
Affiliated companies - - 736 (1,150) 4,475
----------- ------------- ------------ ------------ ------------
27 - 958 (146,363) 2,451,876
OPERATING EXPENSES
Fuel used in electric production - - - 784 300,487
Gas purchased - - - (978) 266,123
Purchased and exchanged power
Non-affiliated companies - - - - 583,065
Affiliated companies - - - (146,301) 12,473
Other operation 3 10 661 (44) 308,239
Maintenance - - - - 90,097
Depreciation 1 - 179 - 163,418
Amortization of phase-in deferrals - - - - 13,483
Amortization of post-in-service
deferred operating expenses - - - - 3,290
Income taxes 4 - 35 164 172,047
Taxes other than income taxes 5 17 7 - 211,303
----------- ------------- ------------ ------------ -------------
13 27 882 (146,375) 2,124,025
OPERATING INCOME 14 (27) 76 12 327,851
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - - - - 98
Phase-in deferred return - - - - 8,008
Equity in earnings of subsidiaries - - - (14,126) -
Income taxes - (424) - - 33,286
Other - net - 1,399 - (2,269) (14,262)
----------- ------------- ------------ ------------ -------------
- 975 - (16,395) 27,130
INCOME BEFORE INTEREST 14 948 76 (16,383) 354,981
INTEREST
Interest on long-term debt - - - - 110,134
Other interest - 1,632 - (2,270) 10,327
Allowance for borrowed funds used
during construction - (1,164) - - (4,633)
----------- ------------- ------------ ------------ -------------
- 468 - (2,270) 115,828
NET INCOME 14 480 76 (14,113) 239,153
PREFERRED DIVIDEND REQUIREMENT - - - - 868
----------- ------------- ------------ ------------ -------------
NET INCOME APPLICABLE TO COMMON STOCK $ 14 $ 480 $ 76 $ (14,113) $ 238,285
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
The Union Light The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and
& Electric Company Power Company Gas Company Electric Company
-----------------------------------------------------------------
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $ 4,495,369 $ 204,111 $ - $ 587
Gas 568,754 155,167 14,949 -
Common 167,005 19,073 - -
---------------- ------------- -------------- ---------------
5,231,128 378,351 14,949 587
Accumulated depreciation 1,862,629 133,213 4,374 204
---------------- ------------- -------------- ---------------
3,368,499 245,138 10,575 383
Construction work in progress 103,514 14,346 273 -
---------------- ------------- -------------- ---------------
Total utility plant 3,472,013 259,484 10,848 383
CURRENT ASSETS
Cash and temporary cash investments 1,555 546 121 53
Restricted deposits 1,173 - - -
Notes receivable from affiliated companies 39,751 - - -
Accounts receivable - net 184,618 7,308 1,514 56
Accounts receivable from affiliated companies 53,694 446 80 -
Materials, supplies, and fuel - at average cost
Fuel for use in electric production 29,682 - - -
Gas stored for current use 23,758 5,401 14 -
Other materials and supplies 48,418 693 - -
Prepayments and other 31,432 385 10 -
---------------- ------------- -------------- ---------------
414,081 14,779 1,739 109
OTHER ASSETS
Regulatory assets
Amounts due from customers - income taxes 350,509 - - 6
Post-in-service carrying costs and
deferred operating expenses 134,672 - - -
Phase-in deferred return and depreciation 89,689 - - -
Deferred demand-side management costs 38,318 - - -
Deferred merger costs 11,344 5,213 - -
Unamortized costs of reacquiring debt 32,985 3,590 - -
Other (823) 2,262 - -
Investments in consolidated subsidiaries 164,307 - - -
Other 58,774 6,262 126 2
---------------- ------------- -------------- ---------------
879,775 17,327 126 8
$ 4,765,869 $ 291,590 $ 12,713 $ 500
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEET (CONTINUED)
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Consolidated
Miami Tri-State KO The Cincinnati Gas
Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company
--------------------------------------------------------------------------------
ASSETS
UTILITY PLANT - ORIGINAL COST
In service
Electric $ 564 $ - $ - $ - $ 4,700,631
Gas - - 8,033 - 746,903
Common - - - - 186,078
----------- ------------ ------------- ----------- ---------------
564 - 8,033 - 5,633,612
Accumulated depreciation - 7,029 - 2,008,005
----------- ------------ ------------- ----------- ---------------
8 - 1,004 - 3,625,607
Construction work in progress - - - 118,133
----------- ------------ ------------- ----------- ---------------
Total utility plant - 1,004 - 3,743,740
CURRENT ASSETS
Cash and temporary cash investments 4 70 - - 2,349
Restricted deposits - - - - 1,173
Notes receivable from affiliated companies - - - (12,558) 27,193
Accounts receivable - net - 5 48 - 193,549
Accounts receivable from affiliated companies 2 372 13 (19,100) 35,507
Materials, supplies, and fuel - at average cost
Fuel for use in electric production - - - - 29,682
Gas stored for current use - - - 1 29,174
Other materials and supplies - - - - 49,111
Prepayments and other - - - - 31,827
----------- ------------- ------------- ----------- ---------------
6 447 61 (31,657) 399,565
OTHER ASSETS
Regulatory assets
Amounts due from customers - income taxes - - - - 350,515
Post-in-service carrying costs and
deferred operating expenses - - - - 134,672
Phase-in deferred return and depreciation - - - - 89,689
Deferred demand-side management costs - - - - 38,318
Deferred merger costs - - - - 16,557
Unamortized costs of reacquiring debt - - - - 36,575
Other - - - - 1,439
Investments in consolidated subsidiaries - - - (164,307) -
Other - 37,782 421 1 103,368
----------- ------------- ------------- ----------- ---------------
- 37,782 421 (164,306) 771,133
$ 14 $ 38,229 $ 1,486 $(195,963) $ 4,914,438
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and
& Electric Company Power Company Gas Company Electric Company
--------------------------------------------------------------------
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 - 8,780 538 20
Paid-in capital 534,649 18,683 - -
Retained earnings (deficit) 313,803 95,450 6,269 327
-------------- ------------- ------------ --------------
Total common stock equity 1,610,588 122,913 6,807 347
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption 20,793 - - -
LONG-TERM DEBT 1,278,561 44,671 1,200 -
-------------- ------------- ------------ --------------
Total capitalization 2,909,942 167,584 8,007 347
CURRENT LIABILITIES
Notes payable and other short-term
obligations 289,000 - - -
Notes payable to affiliated companies 405 23,487 909 10
Accounts payable 237,470 11,097 757 -
Accounts payable to affiliated companies 8,923 19,712 308 27
Accrued taxes 141,621 6,332 321 5
Accrued interest 24,105 1,286 37 2
Other 25,407 4,364 172 7
-------------- ------------- ------------ --------------
726,931 66,278 2,504 51
OTHER LIABILITIES
Deferred income taxes 763,767 26,211 1,141 72
Unamortized investment tax credits 112,228 4,516 210 11
Accrued pension and other postretirement
benefit costs 165,965 14,044 539 14
Amounts due to customers - income taxes 6,566 139
Other 87,036 6,391 173 5
-------------- ------------- ------------ --------------
1,128,996 57,728 2,202 102
$ 4,765,869 $ 291,590 $ 12,713 $ 500
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING BALANCE SHEET (CONTINUED)
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Consolidated
Miami Tri-State KO The Cincinnati Gas
Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company
--------------------------------------------------------------------------------
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 1 25 - (9,364) -
Paid-in capital - - 515 (19,198) 534,649
Retained earnings (deficit) 3 909 (45) (102,913) 313,803
---------- ----------- -------------- ----------- --------------
Total common stock equity 4 934 470 (131,475) 1,610,588
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption - - - - 20,793
LONG-TERM DEBT - 32,926 - (32,926) 1,324,432
---------- ----------- -------------- ----------- --------------
Total capitalization 4 33,860 470 (164,401) 2,955,813
CURRENT LIABILITIES
Notes payable and other short-term
obligations - - - - 289,000
Notes payable to affiliated companies - - - (12,558) 12,253
Accounts payable - 214 - - 249,538
Accounts payable to affiliated companies - - 952 (19,101) 10,821
Accrued taxes 6 744 100 - 149,129
Accrued interest - - - - 25,430
Other - - - - 29,950
---------- ----------- -------------- ----------- --------------
6 958 1,052 (31,659) 766,121
OTHER LIABILITIES
Deferred income taxes (33) 3,401 (36) (127) 794,396
Unamortized investment tax credits - - - 1 116,966
Accrued pension and other postretirement
benefit costs 4 - - 180,566
Amounts due to customers - income taxes 33 223 6,961
Other - 10 - 93,615
---------- ----------- -------------- ----------- --------------
4 3,411 (36) 97 1,192,504
$ 14 $ 38,229 $ 1,486 $(195,963) $ 4,914,438
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY
(dollars in thousands)
<S> <C> <C> <C> <C>
The Union The West
The Cincinnati Light, Heat Harrison Gas
Gas & Electric and Power Lawrenceburg and Electric
Company Company Gas Company Company
--------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1996 $ 1,545,815 $ 120,103 $ 6,482 $ 317
Net Income 239,153 12,917 566 60
Dividends on preferred stock (871) - - -
Dividends on common stock (170,400) (9,951) (226) (30)
Other (3,109) (156) (15) -
------------------ --------------- -------------- --------------
BALANCE AT DECEMBER 31, 1997 $ 1,610,588 $ 122,913 $ 6,807 $ 347
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (CONTINUED)
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Consolidated
Tri-State KO The Cincinnati
Miami Improvement Transmission Gas & Electric
Power Corp. Co. Co. Eliminations Company
--------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1996 $ (5) $ 454 $ 544 $ (127,895) $ 1,545,815
Net Income 14 480 76 (14,113) 239,153
Dividends on preferred stock - - - (871)
Dividends on common stock (5) - (150) 10,362 (170,400)
Other - - 171 (3,109)
------------ --------------- -------------- ---------------- ------------------
BALANCE AT DECEMBER 31, 1997 $ 4 $ 934 $ 470 $ (131,475) $ 1,610,588
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C> <C>
The Union Light, The West
The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and
& Electric Company Power Company Gas Company Electric Company
--------------------------------------------------------------------
Operating Activities
Net income $239,153 $12,917 $566 $60
Items providing or (using) cash:
Depreciation 150,414 12,369 436 19
Deferred income taxes and investment tax
credits - net 22,496 (6,124) (353) 3
Allowance for equity funds used during
construction - (97) (1) -
Regulatory assets - net 32,528 100 194 -
Changes in current assets and current
liabilities
Restricted deposits (2) - - -
Accounts and notes receivable, net of
reserves on receivables sold (96,437) 4,507 249 23
Materials, supplies, and fuel 5,900 973 (1) -
Accounts payable 83,274 2,020 (246) (49)
Accrued taxes and interest (8,355) 7,920 10 (3)
Other items - net (7,838) 5,343 492 16
-------------- ------------ ------------- ------------
Net cash provided by (used in)
operating activities 421,133 39,928 1,346 69
Financing Activities
Issuance of long-term debt 100,062 - - -
Retirement of preferred stock (234) - - -
Redemption of long-term debt (290,612) - - -
Change in short-term debt 74,814 (7,162) (524) 10
Dividends on preferred stock (871) - - -
Dividends on common stock (170,400) (9,951) (226) (30)
-------------- ------------ ------------- ------------
Net cash used in investint
activities (287,241) (17,113) (750) (20)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) (126,445) (23,466) (628) (7)
Deferred demand-side management costs (9,584) - - -
-------------- ------------ ------------- ------------
Net cash used in
investing activities (136,029) (23,466) (628) (7)
Net increase (decrease) in cash and
temporary cash investments (2,137) (651) (32) 42
Cash and temporary cash investments at
beginning of period 3,692 1,197 153 11
-------------- ------------ ------------- ------------
Cash and temporary cash investments at
end of period $ 1,555 $ 546 $ 121 $ 53
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
THE CINCINNATI GAS & ELECTRIC COMPANY
CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED)
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C> <C> <C>
Consolidated
Miami Tri-State KO The Cincinnati Gas
Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company
--------------------------------------------------------------------------------
Operating Activities
Net income $ 14 $ 480 $ 76 $(14,113) $ 239,153
Items providing or (using) cash:
Depreciation 1 - 179 - 163,418
Deferred income taxes and investment tax
credits - net - 347 (21) 95 16,443
Allowance for equity funds used during
construction - - - - (98)
Regulatory assets - net - - - - 32,822
Changes in current assets and current
liabilities
Restricted deposits - - - - (2)
Accounts and notes receivable, net of
reserves on receivables sold (1) 2,369 (43) (16,496) (105,829)
Materials, supplies, and fuel - - - - 6,872
Accounts payable (75) (87) (139) (3,129) 81,569
Accrued taxes and interest 4 34 50 68 (272)
Other items - net (1) 3,462 48 3,107 4,629
------------ ------------ ----------- ------------- --------------
Net cash provided by (used in)
operating activities (58) 6,605 150 (30,468) 438,705
Financing Activities
Issuance of long-term debt - - - - 100,062
Retirement of preferred stock - - - - (234)
Redemption of long-term debt - - - - (290,612)
Change in short-term debt - - - 19,524 86,662
Dividends on preferred stock - - - - (871)
Dividends on common stock (5) - (150) 10,362 (170,400)
------------ ------------ ----------- ------------- --------------
Net cash used in investint
activities (5) - (150) 29,886 (275,393)
Investing Activities
Construction expenditures (less allowance
for equity funds used during construction) - (6,535) - 914 (156,499)
Deferred demand-side management costs - - - - (9,584)
------------ ------------ ----------- ------------- --------------
Net cash used in
investing activities - (6,535) - 914 (166,083)
Net increase (decrease) in cash and
temporary cash investments (63) 70 - 332 (2,771)
Cash and temporary cash investments at
beginning of period 67 - - - 5,120
------------ ------------ ----------- ------------- --------------
Cash and temporary cash investments at
end of period $ 4 $ 70 $ - $ - $ 2,349
</TABLE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C> <C>
Consolidated
PSI Energy PSI
PSI Energy, Inc. Argentina, Inc. Eliminations Energy, Inc. 1/
--------------------------------------------------------------------
OPERATING REVENUES
Electric
Non-affiliated companies $1,940,783 $ - $ - $ 1,940,783
Affiliated companies 17,686 - - 17,686
---------- ----------- -------- ----------
1,958,469 - - 1,958,469
OPERATING EXPENSES
Fuel 392,948 - - 392,948
Purchased and exchanged power
Non-affiliated companies 636,293 - - 636,293
Affiliated companies 29,932 - - 29,932
Other operation 344,878 - - 344,878
Maintenance 86,374 - - 86,374
Depreciation 125,659 - - 125,659
Post-in-service deferred operating
expenses - net 1,072 - - 1,072
Income taxes 76,890 - - 76,890
Taxes other than income taxes 53,721 - - 53,721
---------- ----------- -------- ----------
1,747,767 - - 1,747,767
OPERATING INCOME 210,702 - - 210,702
OTHER INCOME AND EXPENSES - NET
Allowance for equity funds used
during construction - - - -
Post-in-service carrying costs - - - -
Equity in earnings of subsidiary 1,277 - (1,277) -
Income taxes (491) (453) (95) (1,039)
Other - net 5,172 1,206 619 6,997
---------- --------- -------- ----------
5,958 753 (753) 5,958
INCOME BEFORE INTEREST 216,660 753 (753) 216,660
INTEREST
Interest on long-term debt 71,638 - - 71,638
Other interest 13,584 - - 13,584
Allowance for borrowed funds used
during construction (767) - - (767)
---------- --------- -------- ----------
84,455 - - 84,455
NET INCOME 132,205 753 (753) 132,205
PREFERRED DIVIDEND REQUIREMENT 11,701 - - 11,701
---------- --------- -------- ----------
NET INCOME APPLICABLE TO COMMON STOCK $ 120,504 $ 753 $ (753) $ 120,504
<FN>
1/ PSI Energy, Inc. is the parent company of South Construction Co., which did not have activity for 1997.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
PSI Energy Consolidated
PSI Energy, Inc. Argentina, Inc. Eliminations PSI Energy, Inc. 1/
-----------------------------------------------------------------------
ASSETS
ELECTRIC UTILITY PLANT - ORIGINAL COST
In service $ 4,280,551 $ - $ - $ 4,280,551
Accumulated depreciation 1,792,317 - - 1,792,317
----------- ---------- --------- -----------
2,488,234 - - 2,488,234
Construction work in progress 65,129 - - 65,129
----------- ---------- --------- -----------
Total electric utility plant 2,553,363 - - 2,553,363
CURRENT ASSETS
Cash and temporary cash investments 18,169 - - 18,169
Restricted deposits 1,146 - - 1,146
Notes receivable from affiliated companies 21,998 - - 21,998
Accounts receivable - net 198,008 - - 198,008
Accounts receivable from affiliated companies 4,516 1,916 (48) 6,384
Materials, supplies, and fuel - at average cost
Fuel 28,234 - - 28,234
Other matrials and supplies 26,955 - - 26,955
Prepayments and other 4,399 39 4,438
----------- ---------- --------- -----------
303,425 1,955 (48) 305,332
OTHER ASSETS
Regulatory assets
Amounts due from customers - income taxes 23,941 - - 23,941
Post-in-service carrying costs and deferred
operating expenses 43,832 - - 43,832
Coal contract buyout costs 122,485 - - 122,485
Deferred demand-side management costs 71,278 - - 71,278
Deferred merger costs 73,789 - - 73,789
Unamortized costs of reacquiring debt 29,667 - - 29,667
Other 44,094 - - 44,094
Investment in subsidiary 11,999 - (11,999) -
Other 127,945 10,705 - 138,650
----------- --------- --------- -----------
549,030 10,705 (11,999) 547,736
$ 3,405,818 $ 12,660 $ (12,047) $ 3,406,431
<FN>
1/ PSI Energy, Inc. is the parent company of South Construction Co., which did not have activity for 1997.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING BALANCE SHEETS
DECEMBER 31, 1997
(dollars in thousands)
<S> <C> <C> <C> <C>
PSI Energy Consolidated
PSI Energy, Inc. Argentina, Inc. Eliminations PSI Energy, Inc. 1/
------------------------------------------------------------------------
CAPITALIZATION AND LIABILITIES
COMMON STOCK EQUITY
Common stock - without par value; $.01 stated value; authorized shares -
60,000,000; outstanding
shares - 53,913,701 $ 539 $ - $ - $ 539
Paid-in capital 400,893 10,705 (10,705) 400,893
Retained earnings 636,228 1,294 (1,294) 636,228
---------- ------- -------- ----------
Total common stock equity 1,037,660 11,999 (11,999) 1,037,660
CUMULATIVE PREFERRED STOCK
Not subject to mandatory redemption 157,196 - - 157,196
LONG-TERM DEBT 826,470 - - 826,470
---------- ------- -------- ----------
Total capitalization 2,021,326 11,999 (11,999) 2,021,326
CURRENT LIABILITIES
Long-term debt due within one year 85,000 - - 85,000
Notes payable and short-term obligations 190,600 - - 190,600
Notes payable to affiliated companies 16,435 - - 16,435
Accounts payable 212,833 - - 212,833
Accounts payable to affiliated companies 40,713 661 (48) 41,326
Accrued taxes 69,304 - 69,304
Accrued interest 21,369 - - 21,369
Other 2,560 - - 2,560
---------- ------- -------- ----------
638,814 661 (48) 639,427
OTHER LIABILITIES
Deferred income taxes 403,535 - - 403,535
Unamortized investment tax c 49,296 - - 49,296
Accrued pension and other postretirement
benefit costs 116,576 - - 116,576
Other 176,271 - - 176,271
---------- ------- -------- ----------
745,678 - - 745,678
$3,405,818 $12,660 $(12,047) $3,406,431
<FN>
1/ PSI Energy, Inc. is the parent company of South Construction Co., which did not have activity for 1997.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY
(dollars in thousands)
<S> <C> <C> <C> <C>
PSI Consolidated
PSI Energy PSI
Energy, Inc. Argentina, Inc. Eliminations Energy, Inc. 1/
---------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1996 $1,029,575 $11,246 $(11,246) $1,029,575
Net Income 132,205 753 (753) 132,205
Dividends on preferred stock (11,795) (11,795)
Dividends on common stock (113,600) (113,600)
Other 1,275 - - 1,275
----------- ------- -------- ----------
BALANCE AT DECEMBER 31, 1997 $ 1,037,660 $11,999 $(11,999) $1,037,660
<FN>
1/ PSI Energy, Inc. is the parent company of South Construction Co., which did not have activity for 1997.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PSI ENERGY, INC.
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
<S> <C> <C> <C> <C>
Consolidated
PSI Energy PSI
PSI Energy, Inc. Argentina, Inc. Eliminations Energy, Inc. 1/
----------------------------------------------------------------------------------
Operating Activities
Net income $132,205 $ 753 ($753) $132,205
Items providing or (using) cash
Depreciation 125,659 - - 125,659
Deferred income taxes and investment tax
credits - net 35,661 - - 35,661
Regulatory assets - net 38,488 - - 38,488
Changes in current assets and current
liabilities
Restricted deposits (596) - - (596)
Accounts receivable - net (147,462) (1,256) (572) (149,290)
Materials, supplies, and fuel 14,944 - - 14,944
Accounts payable 126,366 661 (48) 126,979
Accrued taxes and interest (6,521) (152) 95 (6,578)
Other items - net 13,358 (6) 1,278 14,630
-------- ------ ------ --------
Net cash provided by
operating activities 332,102 - - 332,102
Financing Activities
Retirement of preferred stock (16,035) - - (16,035)
Redemption of long-term d (45,700) - - (45,700)
Change in short-term debt 22,120 - - 22,120
Dividends on preferred stock (11,795) - - (11,795)
Dividends on common stock (113,600) - - (113,600)
-------- ------ ------ --------
Net cash used in
financing activities (165,010) - - (165,010)
Investing Activities
Construction expenditures (141,552) - - (141,552)
Deferred demand-side management costs (10,282) - - (10,282)
-------- ------ ------ --------
Net cash used in
investing activities (151,834) - - (151,834)
Net increase decrease in cash and
temporary cash investments 15,258 - - 15,258
Cash and temporary cash investments at
beginning of period 2,911 - - 2,911
-------- ------ ------ --------
Cash and temporary cash investments at
end of period $ 18,169 $ - $ - $ 18,169
<FN>
1/ PSI Energy, Inc. is the parent company of South Construction Co., which did not have any activity for 1997.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 0
<NAME> CINERGY CORP.
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<PERIOD-TYPE> 12-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 0
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 94,514
<TOTAL-DEFERRED-CHARGES> 3,055,985
<OTHER-ASSETS> 3,668
<TOTAL-ASSETS> 3,154,167
<COMMON> 1,577
<CAPITAL-SURPLUS-PAID-IN> 1,573,064
<RETAINED-EARNINGS> 964,559
<TOTAL-COMMON-STOCKHOLDERS-EQ> 3,154,167
0
0
<LONG-TERM-DEBT-NET> 0
<SHORT-TERM-NOTES> 600,428
<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> 14,539
<TOT-CAPITALIZATION-AND-LIAB> 2,539,200
<GROSS-OPERATING-REVENUE> 0
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 0
<TOTAL-OPERATING-EXPENSES> 0
<OPERATING-INCOME-LOSS> 0
<OTHER-INCOME-NET> 285,250
<INCOME-BEFORE-INTEREST-EXPEN> 285,250
<TOTAL-INTEREST-EXPENSE> 32,012
<NET-INCOME> 253,238
0
<EARNINGS-AVAILABLE-FOR-COMM> 253,238
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 198,265
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 1
<NAME> CINERGY CORP. (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<PERIOD-TYPE> 12-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 6,297,103
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 670,582
<TOTAL-DEFERRED-CHARGES> 1,076,851
<OTHER-ASSETS> 813,617
<TOTAL-ASSETS> 8,858,153
<COMMON> 1,577
<CAPITAL-SURPLUS-PAID-IN> 1,573,064
<RETAINED-EARNINGS> 964,559
<TOTAL-COMMON-STOCKHOLDERS-EQ> 2,539,200
0
177,989
<LONG-TERM-DEBT-NET> 2,150,902
<SHORT-TERM-NOTES> 952,600
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 161,428
<LONG-TERM-DEBT-CURRENT-PORT> 85,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,791,034
<TOT-CAPITALIZATION-AND-LIAB> 8,858,153
<GROSS-OPERATING-REVENUE> 4,352,843
<INCOME-TAX-EXPENSE> 248,937
<OTHER-OPERATING-EXPENSES> 3,565,313
<TOTAL-OPERATING-EXPENSES> 3,814,250
<OPERATING-INCOME-LOSS> 538,593
<OTHER-INCOME-NET> 72,933
<INCOME-BEFORE-INTEREST-EXPEN> 611,526
<TOTAL-INTEREST-EXPENSE> 240,669
<NET-INCOME> 253,238
0
<EARNINGS-AVAILABLE-FOR-COMM> 253,238
<COMMON-STOCK-DIVIDENDS> 283,866
<TOTAL-INTEREST-ON-BONDS> 181,772
<CASH-FLOW-OPERATIONS> 753,445
<EPS-PRIMARY> 1.61
<EPS-DILUTED> 1.59
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 2
<NAME> THE CINCINNATI GAS & ELECTRIC COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 3,472,013
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 414,081
<TOTAL-DEFERRED-CHARGES> 821,001
<OTHER-ASSETS> 58,774
<TOTAL-ASSETS> 4,765,869
<COMMON> 762,136
<CAPITAL-SURPLUS-PAID-IN> 534,649
<RETAINED-EARNINGS> 313,803
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,610,588
0
20,793
<LONG-TERM-DEBT-NET> 1,278,561
<SHORT-TERM-NOTES> 289,405
<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> 1,566,522
<TOT-CAPITALIZATION-AND-LIAB> 4,765,869
<GROSS-OPERATING-REVENUE> 2,316,628
<INCOME-TAX-EXPENSE> 161,896
<OTHER-OPERATING-EXPENSES> 1,846,187
<TOTAL-OPERATING-EXPENSES> 2,008,083
<OPERATING-INCOME-LOSS> 308,545
<OTHER-INCOME-NET> 43,317
<INCOME-BEFORE-INTEREST-EXPEN> 351,862
<TOTAL-INTEREST-EXPENSE> 112,709
<NET-INCOME> 239,153
868
<EARNINGS-AVAILABLE-FOR-COMM> 238,285
<COMMON-STOCK-DIVIDENDS> 170,400
<TOTAL-INTEREST-ON-BONDS> 106,492
<CASH-FLOW-OPERATIONS> 421,133
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 3
<NAME> THE UNION LIGHT, HEAT AND POWER COMPANY
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<PERIOD-TYPE> 12-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 259,484
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 14,779
<TOTAL-DEFERRED-CHARGES> 11,065
<OTHER-ASSETS> 6,262
<TOTAL-ASSETS> 291,590
<COMMON> 8,780
<CAPITAL-SURPLUS-PAID-IN> 18,683
<RETAINED-EARNINGS> 95,450
<TOTAL-COMMON-STOCKHOLDERS-EQ> 122,913
0
0
<LONG-TERM-DEBT-NET> 44,671
<SHORT-TERM-NOTES> 23,487
<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> 100,519
<TOT-CAPITALIZATION-AND-LIAB> 291,590
<GROSS-OPERATING-REVENUE> 271,622
<INCOME-TAX-EXPENSE> 9,586
<OTHER-OPERATING-EXPENSES> 243,601
<TOTAL-OPERATING-EXPENSES> 253,187
<OPERATING-INCOME-LOSS> 18,435
<OTHER-INCOME-NET> (750)
<INCOME-BEFORE-INTEREST-EXPEN> 17,685
<TOTAL-INTEREST-EXPENSE> 4,768
<NET-INCOME> 12,917
0
<EARNINGS-AVAILABLE-FOR-COMM> 12,917
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 3,523
<CASH-FLOW-OPERATIONS> 39,928
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 4
<NAME> TRI-STATE IMPROVEMENT CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 0
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 447
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 37,782
<TOTAL-ASSETS> 38,229
<COMMON> 25
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 909
<TOTAL-COMMON-STOCKHOLDERS-EQ> 934
0
0
<LONG-TERM-DEBT-NET> 32,926
<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> 4,369
<TOT-CAPITALIZATION-AND-LIAB> 38,229
<GROSS-OPERATING-REVENUE> 0
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 27
<TOTAL-OPERATING-EXPENSES> 27
<OPERATING-INCOME-LOSS> (27)
<OTHER-INCOME-NET> 975
<INCOME-BEFORE-INTEREST-EXPEN> 948
<TOTAL-INTEREST-EXPENSE> 468
<NET-INCOME> 480
0
<EARNINGS-AVAILABLE-FOR-COMM> 480
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 6,605
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 5
<NAME> LAWRENCEBURG GAS COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 10,848
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 1,739
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 126
<TOTAL-ASSETS> 12,713
<COMMON> 538
<CAPITAL-SURPLUS-PAID-IN> (15)
<RETAINED-EARNINGS> 6,269
<TOTAL-COMMON-STOCKHOLDERS-EQ> 6,807
0
0
<LONG-TERM-DEBT-NET> 1,200
<SHORT-TERM-NOTES> 909
<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> 3,797
<TOT-CAPITALIZATION-AND-LIAB> 12,713
<GROSS-OPERATING-REVENUE> 8,503
<INCOME-TAX-EXPENSE> 352
<OTHER-OPERATING-EXPENSES> 7,424
<TOTAL-OPERATING-EXPENSES> 7,776
<OPERATING-INCOME-LOSS> 727
<OTHER-INCOME-NET> (9)
<INCOME-BEFORE-INTEREST-EXPEN> 718
<TOTAL-INTEREST-EXPENSE> 152
<NET-INCOME> 566
0
<EARNINGS-AVAILABLE-FOR-COMM> 566
<COMMON-STOCK-DIVIDENDS> 226
<TOTAL-INTEREST-ON-BONDS> 119
<CASH-FLOW-OPERATIONS> 1,346
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 6
<NAME> THE WEST HARRISON GAS AND ELECTRIC COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 383
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 109
<TOTAL-DEFERRED-CHARGES> 6
<OTHER-ASSETS> 2
<TOTAL-ASSETS> 500
<COMMON> 20
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 327
<TOTAL-COMMON-STOCKHOLDERS-EQ> 347
0
0
<LONG-TERM-DEBT-NET> 0
<SHORT-TERM-NOTES> 10
<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> 143
<TOT-CAPITALIZATION-AND-LIAB> 500
<GROSS-OPERATING-REVENUE> 501
<INCOME-TAX-EXPENSE> 10
<OTHER-OPERATING-EXPENSES> 422
<TOTAL-OPERATING-EXPENSES> 432
<OPERATING-INCOME-LOSS> 69
<OTHER-INCOME-NET> (8)
<INCOME-BEFORE-INTEREST-EXPEN> 61
<TOTAL-INTEREST-EXPENSE> 1
<NET-INCOME> 60
0
<EARNINGS-AVAILABLE-FOR-COMM> 60
<COMMON-STOCK-DIVIDENDS> 30
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 69
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 7
<NAME> MIAMI POWER CORP.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 8
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 6
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 14
<COMMON> 1
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 3
<TOTAL-COMMON-STOCKHOLDERS-EQ> 4
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> 10
<TOT-CAPITALIZATION-AND-LIAB> 14
<GROSS-OPERATING-REVENUE> 27
<INCOME-TAX-EXPENSE> 4
<OTHER-OPERATING-EXPENSES> 9
<TOTAL-OPERATING-EXPENSES> 13
<OPERATING-INCOME-LOSS> 14
<OTHER-INCOME-NET> 0
<INCOME-BEFORE-INTEREST-EXPEN> 14
<TOTAL-INTEREST-EXPENSE> 0
<NET-INCOME> 14
0
<EARNINGS-AVAILABLE-FOR-COMM> 14
<COMMON-STOCK-DIVIDENDS> 5
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> (58)
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 8
<NAME> KO TRANSMISSION CO.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,004
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 61
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 421
<TOTAL-ASSETS> 1,486
<COMMON> 0
<CAPITAL-SURPLUS-PAID-IN> 515
<RETAINED-EARNINGS> (45)
<TOTAL-COMMON-STOCKHOLDERS-EQ> 470
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> 1,016
<TOT-CAPITALIZATION-AND-LIAB> 1,486
<GROSS-OPERATING-REVENUE> 958
<INCOME-TAX-EXPENSE> 35
<OTHER-OPERATING-EXPENSES> 847
<TOTAL-OPERATING-EXPENSES> 882
<OPERATING-INCOME-LOSS> 76
<OTHER-INCOME-NET> 0
<INCOME-BEFORE-INTEREST-EXPEN> 76
<TOTAL-INTEREST-EXPENSE> 0
<NET-INCOME> 76
0
<EARNINGS-AVAILABLE-FOR-COMM> 76
<COMMON-STOCK-DIVIDENDS> 150
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 150
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 9
<NAME> THE CINCINNATI GAS & ELECTRIC COMPANY (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<PERIOD-TYPE> 12-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 3,743,740
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 399,565
<TOTAL-DEFERRED-CHARGES> 667,765
<OTHER-ASSETS> 103,368
<TOTAL-ASSETS> 4,914,438
<COMMON> 762,136
<CAPITAL-SURPLUS-PAID-IN> 534,649
<RETAINED-EARNINGS> 313,803
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,610,588
0
20,793
<LONG-TERM-DEBT-NET> 1,324,432
<SHORT-TERM-NOTES> 301,253
<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> 1,657,372
<TOT-CAPITALIZATION-AND-LIAB> 4,914,438
<GROSS-OPERATING-REVENUE> 2,451,876
<INCOME-TAX-EXPENSE> 172,047
<OTHER-OPERATING-EXPENSES> 1,951,978
<TOTAL-OPERATING-EXPENSES> 2,124,025
<OPERATING-INCOME-LOSS> 327,851
<OTHER-INCOME-NET> 27,130
<INCOME-BEFORE-INTEREST-EXPEN> 354,981
<TOTAL-INTEREST-EXPENSE> 115,828
<NET-INCOME> 239,153
868
<EARNINGS-AVAILABLE-FOR-COMM> 238,285
<COMMON-STOCK-DIVIDENDS> 170,400
<TOTAL-INTEREST-ON-BONDS> 110,134
<CASH-FLOW-OPERATIONS> 438,705
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 10
<NAME> PSI ENERGY, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,553,363
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 303,425
<TOTAL-DEFERRED-CHARGES> 409,086
<OTHER-ASSETS> 127,945
<TOTAL-ASSETS> 3,405,818
<COMMON> 539
<CAPITAL-SURPLUS-PAID-IN> 400,893
<RETAINED-EARNINGS> 636,228
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,037,660
0
157,196
<LONG-TERM-DEBT-NET> 826,470
<SHORT-TERM-NOTES> 207,035
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 85,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,092,457
<TOT-CAPITALIZATION-AND-LIAB> 3,405,818
<GROSS-OPERATING-REVENUE> 1,958,469
<INCOME-TAX-EXPENSE> 76,890
<OTHER-OPERATING-EXPENSES> 1,670,877
<TOTAL-OPERATING-EXPENSES> 1,747,767
<OPERATING-INCOME-LOSS> 210,702
<OTHER-INCOME-NET> 5,958
<INCOME-BEFORE-INTEREST-EXPEN> 216,660
<TOTAL-INTEREST-EXPENSE> 84,455
<NET-INCOME> 132,205
11,701
<EARNINGS-AVAILABLE-FOR-COMM> 120,504
<COMMON-STOCK-DIVIDENDS> 113,600
<TOTAL-INTEREST-ON-BONDS> 71,638
<CASH-FLOW-OPERATIONS> 332,102
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 11
<NAME> PSI ARGENTINA, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 0
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 1,955
<TOTAL-DEFERRED-CHARGES> 0
<OTHER-ASSETS> 10,705
<TOTAL-ASSETS> 12,660
<COMMON> 0
<CAPITAL-SURPLUS-PAID-IN> 10,705
<RETAINED-EARNINGS> 1,294
<TOTAL-COMMON-STOCKHOLDERS-EQ> 11,999
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> 661
<TOT-CAPITALIZATION-AND-LIAB> 12,660
<GROSS-OPERATING-REVENUE> 0
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 0
<TOTAL-OPERATING-EXPENSES> 0
<OPERATING-INCOME-LOSS> 0
<OTHER-INCOME-NET> 753
<INCOME-BEFORE-INTEREST-EXPEN> 753
<TOTAL-INTEREST-EXPENSE> 0
<NET-INCOME> 753
0
<EARNINGS-AVAILABLE-FOR-COMM> 753
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 0
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<SUBSIDIARY>
<NUMBER> 12
<NAME> PSI ENERGY, INC. (CONSOLIDATED)
<MULTIPLIER> 1,000
<S> <C>
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<PERIOD-TYPE> 12-MOS
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,553,363
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 305,332
<TOTAL-DEFERRED-CHARGES> 409,086
<OTHER-ASSETS> 138,650
<TOTAL-ASSETS> 3,406,431
<COMMON> 539
<CAPITAL-SURPLUS-PAID-IN> 400,893
<RETAINED-EARNINGS> 636,228
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,037,660
0
157,196
<LONG-TERM-DEBT-NET> 826,470
<SHORT-TERM-NOTES> 207,035
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 85,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,093,070
<TOT-CAPITALIZATION-AND-LIAB> 3,406,431
<GROSS-OPERATING-REVENUE> 1,958,469
<INCOME-TAX-EXPENSE> 76,890
<OTHER-OPERATING-EXPENSES> 1,670,877
<TOTAL-OPERATING-EXPENSES> 1,747,767
<OPERATING-INCOME-LOSS> 210,702
<OTHER-INCOME-NET> 5,958
<INCOME-BEFORE-INTEREST-EXPEN> 216,660
<TOTAL-INTEREST-EXPENSE> 84,455
<NET-INCOME> 132,205
11,701
<EARNINGS-AVAILABLE-FOR-COMM> 120,504
<COMMON-STOCK-DIVIDENDS> 113,600
<TOTAL-INTEREST-ON-BONDS> 71,638
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<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
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</LEGEND>
<SUBSIDIARY>
<NUMBER> 13
<NAME> CINERGY INVESTMENTS, INC. (CONSOLIDATED)
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<S> <C>
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<PERIOD-END> DEC-31-1997
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<TOTAL-ASSETS> 595,926
<COMMON> 0
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<TOTAL-COMMON-STOCKHOLDERS-EQ> 412,586
0
0
<LONG-TERM-DEBT-NET> 0
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0
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<OTHER-INCOME-NET> 45,285
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<NET-INCOME> (74,193)
0
<EARNINGS-AVAILABLE-FOR-COMM> (74,193)
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED
STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
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</LEGEND>
<SUBSIDIARY>
<NUMBER> 14
<NAME> CINERGY SERVICES, INC.
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<S> <C>
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<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
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0
0
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0
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<NET-INCOME> 0
0
<EARNINGS-AVAILABLE-FOR-COMM> 0
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</TABLE>
