<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
----------------
FORM U5S
ANNUAL REPORT
For the Fiscal Year Ended December 31, 1998
Filed pursuant to the Public Utility Holding Company Act of 1935
by
THE SOUTHERN COMPANY
270 PEACHTREE STREET, N. W.
ATLANTA, GEORGIA 30303
<PAGE>
THE SOUTHERN COMPANY
FORM U5S
1998
TABLE OF CONTENTS
ITEM PAGE NUMBER
1. System Companies and Investments Therein as of
December 31, 1998 1
2. Acquisitions or Sales of Utility Assets 7
3 Issue, Sale, Pledge, Guarantee or Assumptions
of System Securities 7
4. Acquisition, Redemption or Retirement of System
Securities 8
5. Investments in Securities of Nonsystem Companies 10
6. Officers and Directors 11
7. Contributions and Public Relations 50
8. Service, Sales and Construction Contracts 53
9. Wholesale Generators and Foreign Utility Companies 54
10. Financial Statements and Exhibits A
i
<PAGE>
ITEMS
<TABLE>
<CAPTION>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998.
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
THE SOUTHERN COMPANY
(SOUTHERN) None None n/a n/a
ALABAMA POWER COMPANY
(ALABAMA) 5,608,955 100 $2,784,067 $2,784,067
Alabama Energy Providers, Inc. 1,000 100 1 1
Alabama Property Company 1,000 100 9,935 9,935
Alabama Power Capital Trust I
(ALABAMA TRUST I) n/a n/a 3,000 3,000
Alabama Power Capital Trust II
(ALABAMA TRUST II) n/a n/a 6,186 6,186
Southern Electric
Generating
Company (SEGCO) (a) 164,000 50 24,360 24,360
ENERGIA DE NUEVO LEON, S. A.
DE C. V. 358 33 1/3 - -
GEORGIA POWER COMPANY
(GEORGIA) 7,761,500 100 3,,784,172 3,784,172
SEGCO (a) 164,000 50 24,360 24,360
Piedmont-Forrest
Corporation (PIEDMONT) 100,000 100 7,667 7,667
13,273 (b) 13,273
Georgia Power LP Holdings Corp.
(GEORGIA POWER
HOLDINGS) 500 100 - -
Georgia Power Capital, L.P.
(GEORGIA CAPITAL) n/a n/a 4,165 4,165
Georgia Power Capital Trust I
(GEORGIA TRUST I) n/a n/a 8,171 8,171
Georgia Power Capital Trust II
(GEORGIA TRUST II) n/a n/a 6,218 6,218
Georgia Power Capital Trust III
(GEORGIA TRUST III) n/a n/a 6,557 6,557
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998.
(Continued)
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
GULF POWER COMPANY (GULF) 992,717 100 427,652 427,652
Gulf Power Capital Trust I
(GULF TRUST I) n/a n/a 1,418 1,418
Gulf Power Capital Trust II
(GULF TRUST II) n/a n/a 1,493 1,493
MISSISSIPPI POWER COMPANY
(MISSISSIPPI) 1,121,000 100 391,231 391,231
Mississippi Power Capital Trust I
(MISSISSIPPI TRUST I) n/a n/a 1,082 1,082
Mississippi Power Services, Inc. 100 100 10 10
MOBILE ENERGY SERVICES
HOLDINGS, INC. (MESH) 1,000 100 19,333 19,333
Mobile Energy Services
Company, LLC (MESCO) n/a 99 74,178 74,178
POWERCALL, INC. 1,000 100 2,111 2,111
SAVANNAH ELECTRIC AND
POWER COMPANY
(SAVANNAH) 10,844,635 100 175,865 175,865
Savannah Electric and Power Capital Trust I
(SAVANNAH ELECTRIC TRUST I) n/a n/a 1,242 1,242
SOUTHERN ENERGY, INC. (Southern Energy) 1,000 100 2,661,113 2,661,113
ASOCIADOS DE ELECTRICIDAD 11,999 (c) (d) (d)
SEI Y ASOCIADOS DE ARGENTINA S. A. 9,840,000 (c) (d) (d)
Hidroelectrica Alicura, S. A. 166,380,000 (c) (d) (d)
SOUTHERN COMPANY CAPITAL
FUNDING, INC. n/a 100 53,142 53,142
SOUTHERN ELECTRIC, INC. 1,000 100 17 17
</TABLE>
2
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998.
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SOUTHERN ENERGY FINANCE
COMPANY, INC. 1,000 100 139,969 139,969
EPZ Lease, Inc. 1,000 (c) (d) (d)
EPZ Lease, L.L.C. None (c) (d) (d)
EPZ Lease Holding A, L.L.C. None (c) (d) (d)
EPZ Lease Holding B, L.L.C. None (c) (d) (d)
EPZ Lease Holding C, L.L.C. None (c) (d) (d)
Dutch Gas Lease, Inc. 1,000 (c) (d) (d)
Dutch Gas Lease, L.L.C. None (c) (d) (d)
Dutch Gas Lease Holding A, L.L.C. None (c) (d) (d)
Dutch Gas Lease Holding B, L.L.C. None (c) (d) (d)
Dutch Gas Lease Holding C, L.L.C. None (c) (d) (d)
Southern Energy Clairton, Inc. 1,000 (c) (d) (d)
Southern Energy Clairton, L.L.C. 1,000 (c) (d) (d)
Southern Energy Clairton 2, Inc. 1,000 (c) (d) (d)
Southern Energy Carbontronics, Inc. 1,000 (c) (d) (d)
Southern Energy Carbontronics, L.L.C. 1,000 (c) (d) (d)
SOUTHERN ENERGY RESOURCES, INC.
(Southern Resources) 1,000 100 131,652 131,652
SEI Operadora de Argentina, S. A. 11,999 (c) (d) (d)
Southern Electric International-
Asia, Inc 1,000 (c) (d) (d)
Southern Electric International, GmbH 500 (c) (d) (d)
SOUTHERN ENERGY INTERNATIONAL, 1,000 100 2,536,921 2,536,921
INC.
CAYMAN ENERGY TRADERS 1 (c) (d) (d)
Southern Electric do Brazil Participacoes, Ltda n/a (c) (d) (d)
Companhia Energetica de Minas Gerais n/a (c) (d) (d)
SOUTHERN ELECTRIC INTERNATIONAL
FINANCE, INC 1,000 (c) (d) (d)
SOUTHERN ELECTRIC INTERNATIONAL
NETHERLANDS B.V. 1,000 (c) (d) (d)
SE CHINA INVESTMENTS, INC, 1,000 (c) (d) (d)
Southern Energy Mauritius Limited 1,000 (c) (d) (d
SEMAR Limited 1,000 (c) (d) (d)
Southern Energy Newco Limited 1,000 (c) (d) (d)
SEI BRAZIL HOLDINGS, INC. 1,000 (c) (d) (d)
SEI SOUTH AMERICA, INC. 1,000 (c) (d) (d)
SOUTHERN ENERGY CARIBE, LTD. 1,000 (c) (d) (d)
</TABLE>
3
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SOUTHERN ENERGY - ASIA, INC. 1,000 100 1,498,577 1,498,577
Consolidated Electric Power Asia
Limited (CEPA) 1,066,124,419 (c) (d) (d)
Southern Energy Asia Ventures, Inc. 1,000 (c) (d) (d)
SOUTHERN ENERGY DO BRAZIL, LTDA n/a 99.85 50 50
SOUTHERN ENERGY E ASSOCIADOS
PARTICIPACOES, S.A. n/a 100 81,000 81,000
SOUTHERN ENERGY - NEWCO 2, INC. 1,000 100 177,491 177,491
SEI Chile, S. A. 999 (c) (d) (d)
Empresa Electrica del Norte
Grande, S. A. (Edelnor) 158,643,607 (c) (d) (d)
Sitranor S. A. n/a (c) (d) (d)
Energia del Pacifico S. A. 1,000 (c) (d) (d)
Gasoducto Nor Andino
Argentina, S.A. 3,600,000 (c) (d) (d)
Gasoducto Nor Andino S.A. n/a (c) (d) (d)
SEI Beteiligungs GmbH 1 (c) (d) (d)
P. T. Tarahan Power Company n/a (c) (d) (d)
Southern Electric Bahamas
Holdings, Ltd. 1,000 100 40,171 40,171
Southern Electric Bahamas, Ltd. 5,000 (c) (d) (d)
ICD Utilities Limited 2,500,000 (c) (d) (d)
Freeport Power Company Limited 910,809 (c) (d) (d)
SEI WORLDWIDE HOLDINGS, INC. 1,000 (c) (d) (d)
SEI Worldwide Holdings (Germany) GmbH 3 (c) (d) (d)
SEI GERMANY BEWAG, INC. 1,000 (c) (d) (d)
SEI Worldwide Holdings (Germany) GmbH 3 (c) (d) (d)
Southern Energy Development Europa GmbH 1,000 (c) (d) (d)
Southern Energy Holdings Beteiligungs
gesellschaft mbH 3 (c) (d) (d)
BEWAG 29,120,002 (c) (d) (d)
</TABLE>
4
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SOUTHERN ENERGY- EUROPE, INC. 1,000 100 296,275 296,275
The Southern Company - Europe plc 50,000 (c) (d) (d)
Southern Energy Development - Europe Limited 2 (c) (d) (d)
Southern Energy Development Hungaria L.L.C. 1,000 (c) (d) (d)
Southern Energy UK Generation Limited 100 (c) (d) (d)
Southern Energy Netherlands Ltd. 55 (c) (d) (d)
Southern Electric International - Europe, Inc. 1,000 (c) (d) (d)
SWEB Holdings UK 12,184,716 (c) (d) (d)
SWEB Holdings Limited 150,000 (c) (d) (d)
Southern Investments UK plc 500,400,587 (c) (d) (d)
South Western Electricity plc 113,989,525 (c) (d) (d)
SOUTHERN ELECTRIC INTERNATIONAL
TRINIDAD, INC. 1,000 100 37,666 37,666
The Power Generation
Company of Trinidad
and Tobago Limited 188,370,000 (c) (d) (d)
SOUTHERN ENERGY NORTH
AMERICA, INC. 500 100 333,236 333,236
SEI Birchwood, Inc. 1,000 (c) (d) (d)
Birchwood Power Partners, L. P. n/a (c) (d) (d)
Greenhost, Inc. 50 50 (d) (d)
SEI Hawaiian Cogenerators, Inc. 1,000 (c) (d) (d)
SEI New England Holding Corp. 1,000 (c) (d) (d)
Southern Energy New England, L.L.C. 1,000 (c) (d) (d)
Southern Energy Canal, L.L.C. 1,000 (c) (d) (d)
Southern Energy Kendall, L.L.C. 1,000 (c) (d) (d)
Southern Energy Canal III, Inc. 1,000 (c) (d) (d)
Newington Energy L.L.C. 1,000 (c) (d) (d)
SEI New England, Inc. 1,000 (c) (d) (d)
Southern Energy Canal, L.L.C. 1,000 (c) (d) (d)
Southern Energy New England, L.L.C. 1,000 (c) (d) (d)
SEI State Line, Inc. 1,000 (c) (d) (d)
State Line Holding Corporation 1,000 (c) (d) (d)
State Line Energy, L.L.C. n/a (c) (d) (d)
SEI Wisconsin Holdings, Inc. 1,000 (c) (d) (d)
SEI Wisconsin, L.L.C. 1,000 (c) (d) (d)
Southern Energy California, Inc. 1,000 (c) (d) (d)
Southern Energy Potrero, L.L.C. 1,000 (c) (d) (d)
Southern Energy Delta, L.L.C. 1,000 (c) (d) (d)
Southern Energy Bay Area Investments, Inc. 1,000 (c) (d) (d)
Southern Energy Potrero, L.L.C. 1,000 (c) (d) (d)
Southern Energy Delta, L.L.C. 1,000 (c) (d) (d)
Southern Energy - Cajun, Inc. 10,000 (c) (d) (d)
Louisiana Generating L.L.C. n/a (c) (d) (d)
Southern Energy Texas (G.P.), Inc. 1,000 (c) (d) (d)
Southern Energy Central Texas, L.P. 1,000 (c) (d) (d)
</TABLE>
5
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998
(Continued)
<TABLE>
<CAPTION>
Name of Company Number of Percentage Issuer
(Add abbreviation Common of Voting Book Owner's
used herein) Shares Owned Power Value Book Value
In Thousands
<S> <C> <C> <C> <C>
SOUTHERN ENERGY NORTH
AMERICA, INC. (continued)
Southern Energy Southwest Investments, Inc. 1,000 (c) (d) (d)
Southern Energy Ventures, Inc. 1,000 (c) (d) (d)
Southern Energy Trading and Marketing, Inc. 1,000 (c) (d) (d)
Southern Energy Retail Trading and
Marketing, Inc. 1,000 (c) (d) (d)
Southern Energy Wichita Falls, L.P. 1,000 (c) (d) (d)
Southern Energy New York G.P., Inc. 1,000 (c) (d) (d)
Southern Energy Hudson Valley Investments, Ltd. 1,000 (c) (d) (d)
Southern Energy Bowline, L.L.C. 1,000 (c) (d) (d)
Southern Energy Lovett, L.L.C. 1,000 (c) (d) (d)
Southern Energy NY - Gen L.L.C. 1,000 (c) (d) (d)
SC Energy Ventures, Inc. 1,000 (c) (d) (d)
Southern Company Energy Marketing L.P. n/a (c) (d) (d)
SC Ashwood Holding, Inc. 1,000 (c) (d) (d)
Southern Company Energy Marketing G.P., L.L.C. n/a (c) (d) (d)
SOUTHERN COMPANY
SERVICES, INC. (SCS) 14,500 100 875 875
SOUTHERN COMMUNICATIONS
SERVICES, INC. (Southern LINC) 500 100 92,936 92,936
46,666 (e) 46,666
SOUTHERN ELECTRIC RAILROAD
COMPANY (SERC) 5,000 100 5 5
SOUTHERN NUCLEAR OPERATING
COMPANY, INC. (Southern Nuclear) 1,000 100 2,049 2,049
5,000 (f) 5,000
SOUTHERN TELECOM, INC. 1,000 100 7,947 7,947
SOUTHERN COMPANY ENERGY
SOLUTIONS, INC. (Energy 500 100 24,799 24,799
Solutions)
</TABLE>
6
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998
(Continued)
Notes to Item 1:
(a) SEGCO is 50% owned by ALABAMA and 50% owned by GEORGIA.
The amounts shown reflect the respective ownership interests of each
company.
(b) Promissory note due on demand; interest rate, based on GEORGIA's
embedded cost of capital, was 9.74% at January 1, 1999.
(c) This information is contained in Item 9, Part I(a).
(d) This information is filed confidentially pursuant to Rule 104.
(e) Unsecured notes payable due on or before December 31, 2000 at an
end-of-year interest rate of 4.48%.
(f) Unsecured notes payable due on or before December 31, 2000 at an
end-of-year interest rate of 5.33%.
(g) The new companies formed in 1998 were all incorporated in the state of
Delaware and are listed below.
Southern Energy Ventures, Inc. was formed in January 1998.
Southern Energy Asia Ventures, Inc. was formed in February 1998.
SE China Investments, Inc.; Southern Energy Canal, LLC; Southern
Energy Kendall, LLC;
Southern Energy New England, LLC; SEI New England Holding Corp.; and
SEI New England, Inc. were formed in May 1998.
Southern Energy Carbontronics, Inc.; Southern Energy Carbontronics,
LLC and Southern Energy - Europe, Inc. were formed in June 1998.
Southern Energy Caribe, Ltd.; SEI Wisconsin, LLC; and SEI Wisconsin
Holdings, Inc. were formed in July 1998.
SEI Brazil Holdings, Inc. and SEI South America, Inc. were formed in
August 1998.
Southern Energy Southwest Investments, Inc.; Southern Energy Wichita
Falls, LP and Southern Energy Texas (G.P.) Inc. were formed in
September 1998.
Southern Energy Europe Investments, Inc.; Southern Energy Canal III,
Inc.; Southern Energy Potrero, LLC; Southern Energy Delta, LLC;
Southern Energy Bay Area Investments, Inc.; Southern Energy
California,Inc.; Southern Energy Netherlands, Ltd.; Southern Energy
New York GP, Inc.; Southern Energy Hudson Valley Investments, Ltd.;
Southern Energy Bowline, LLC; and Southern Energy Lovett, LLC were
formed in November 1998.
Southern Energy Central Texas, L.P. was formed in December 1998.
ITEM 2. ACQUISITION OR SALES OF UTILITY ASSETS.
NONE.
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES.
NONE.
7
<PAGE>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
<TABLE>
<CAPTION>
Calendar Year 1998
Name of Company Indicate
Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission
Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization
- -----------------------------------------------------------------------------------------------------------------------------
(See Note)
ALABAMA:
First Mortgage Bonds
<S> <C>> <C> <C> <C> <C>
8.750% Series due 2021 ALABAMA None $148,500,000 $148,500,000 $161,019,784
8.50% Series due 2022 ALABAMA None $198,000,000 $198,000,000 $215,334,350
5.50% Series due 1998 ALABAMA None $50,000,000 $50,000,000 $51,375,000
8.30% Series due 2022 ALABAMA None $99,608,000 $99,608,000 $107,219,434
7.250% Series due 2007 ALABAMA None $175,000,000 $175,000,000 $184,144,965
6.85% Series due 2002 ALABAMA None $100,000,000 $100,000,000 $103,091,389
Preferred Stock
6.40% Series ALABAMA None $50,000,000 $50,000,000 $52,613,909
6.80% Series ALABAMA None $38,000,000 $38,000,000 $39,108,324
Pollution Control Revenue Bonds
6.05% Series B due 2023 ALABAMA None $9,700,000 $9,700,000 $9,999,959
6.05% Series C due 2023 ALABAMA None $87,290,000 $87,290,000 $89,989,322
5.80% Series H due 2022 ALABAMA None $9,800,000 $9,800,000 $10,051,261
GEORGIA:
First Mortgage Bonds
7.00% Series due 2000 GEORGIA None $100,000,000 $100,000,000 $100,000,000
7.95% Series due 2023 GEORGIA None $138,250,000 $138,250,000 $138,250,000
5.50% Series due 1998 GEORGIA None $100,000,000 $100,000,000 $100,000,000
7.75% Series due 2023 GEORGIA None $70,000,000 $70,000,000 $70,000,000
6.85% Series due 2002 GEORGIA None $150,000,000 $150,000,000 $150,000,000
Pollution Control Revenue Bonds
5.375% Series due 2005 GEORGIA None $46,790,000 $46,790,000 $46,790,000
5.90% Series due 2024 GEORGIA None $10,000,000 $10,000,000 $10,000,000
5.90% Series due 2024 GEORGIA None $7,000,000 $7,000,000 $7,000,000
6.00% Series due 2018 GEORGIA None $8,375,000 $8,375,000 $8,375,000
6.20% Series due 2022 GEORGIA None $4,100,000 $4,100,000 $4,100,000
6.00% Series due 2018 GEORGIA None $13,725,000 $13,725,000 $13,725,000
Preferred Stock
$5.00 Series GEORGIA $11,200 None $11,200 $10,667
$4.92 Series GEORGIA $533,700 None $533,700 $520,032
$4.60 Series GEORGIA $420,300 None $420,300 $361,606
$4.96 Series GEORGIA $25,800 None $25,800 $25,341
$4.60 1962 Series GEORGIA $25,500 None $25,500 $23,228
$4.60 1963 Series GEORGIA $5,000 None $5,000 $4,322
$4.72 Series GEORGIA $110,500 None $110,500 $103,284
$5.64 Series GEORGIA $39,500 None $39,500 $39,452
Series K Variable Rate GEORGIA $0 $40,679,000 $40,679,000 $40,679,000
Series L Variable Rate GEORGIA $0 $64,212,925 $64,212,925 $64,212,925
</TABLE>
8
<PAGE>
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES.
<TABLE>
<CAPTION>
Calendar Year 1998
Name of Company Indicate
Name of Issuer and Acquiring, Redeeming Number of Shares or Principal Amount Commission
Title of Issue or Retiring Securities Acquired Redeemed Retired Consideration Authorization
- -----------------------------------------------------------------------------------------------------------------------------
(See Note)
GULF:
First Mortgage Bonds
<S> <C>> <C> <C> <C> <C>
5.55% Series due 1998 GULF None None $15,000,000 $15,000,000
5.00% Series due 1998 GULF None None $30,000,000 $30,000,000
Preferred Stock
4.64% Series GULF None 50 50 $5,000
6.72% Series GULF None 346,429 346,429 $8,660,725
Adjustable Rate GULF None 31,560 31,560 $789,000
MISSISSIPPI:
First Mortgage Bonds
5 3/8% Series due 1998 MISSISSIPPI $0 $35,000,000 $35,000,000 $35,000,000
6 5/8% Series due 2000 MISSISSIPPI $0 $40,000,000 $40,000,000 $40,000,000
Pollution Control Bonds
5.80% Series due 2007 MISSISSIPPI None $20,000 $20,000 $20,000
6.20% Series due 2023 MISSISSIPPI None $13,000,000 $13,000,000 $13,260,000
SAVANNAH:
First Mortgage Bonds
8.30% Series due 2022 SAVANNAH None $30,000,000 $30,000,000 $31,528,810
Preferred Stock
6.64% Series SAVANNAH None $35,000,000 $35,000,000 $35,000,000
</TABLE>
Note to Item 4: All transactions exempt pursuant to Rule 42(b)(2), (4) or (5) or
authorized in File No. 70-8095 or in the respective proceedings relating to the
issuance and sale of preferred stock.
9
<PAGE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES.
<TABLE>
<CAPTION>
Number of
Shares or Carrying
Principal Value
Name of Owner Name of Issuer Amount Owned to Owner
- ------------- -------------- ------------ --------
<S> <C> <C> <C>
ALABAMA (one item) (1) 204 shares $1
ALABAMA (four items) (2) $654,000 $654,000
GEORGIA (one item) (3) $4,000,000 $4,000,000
GULF (five items) (1) 165 shares $1
Energy Solutions (one item) (4) 130,381 shares $1
SAVANNAH (one item) (1) 266 shares $1
</TABLE>
Notes to Item 5:
(1) Securities representing bankruptcy distributions applicable to
obligations of customers incurred in the ordinary course of business.
(2) Debt securities issued by instrumentalities of political subdivisions
within ALABAMA's service area to build promotional industrial buildings that
will assist in advancing business and industrial development.
(3) Investment made in a private venture capital fund for the purpose of
assisting early-stage and high technology companies located principally in the
Southeast, with a focus on Georgia-based firms. (See File No. 70-8085.)
(4) Represents Energy Solutions investment in Integrated Communication
Systems, Inc. (ICS). ICS is engaged in providing two-way communications over
local telephone lines for a wide range of energy-related services in the
residential and small commercial markets.
10
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I.
The following are the abbreviations to be used for principal business address
and positions.
Principal Business Address Code
270 Peachtree Street
Atlanta, GA 30303 (a)
600 North 18th Street
Birmingham, AL 35291 (b)
241 Ralph McGill Boulevard, N.E.
Atlanta, GA 30308-3374 (c)
500 Bayfront Parkway
Pensacola, FL 32501 (d)
900 Ashwood Parkway
Suite 500
Atlanta, GA 30338 (e)
2992 West Beach Boulevard
Gulfport, MS 39501 (f)
600 East Bay Street
Savannah, GA 31401 (g)
Suipacha 1111 Piso 18
1368 Buenos Aires, Argentina (h)
LN Alem 712 - Piso 7
(1001) Buenos Aires, Argentina (i)
Apoquindo 3721 Office 114
Las Condes, Chile (j)
Avenida Grecia 750
Casilla 1290
Antofagasta, Chile (k)
800 Park Avenue, Aztec West
Almondsbury, Bristol BS12 4SE (l)
5555 Glenridge Connector
Atlanta, GA 30342 (m)
42 Inverness Center Parkway
Birmingham, AL 35242 (n)
40 Inverness Center Parkway
Birmingham, AL 35242 (o)
Position Code
Director D
President P
Chief Executive Officer CEO
Chief Financial Officer CFO
Chief Accounting Officer CAO
Chief Information Officer CIO
Chief Production Officer CPO
Senior Executive Vice President SEVP
Executive Vice President EVP
Senior Vice President SVP
Financial Vice President FVP
Vice President VP
Controller/Comptroller C
Counsel L
Secretary S
Treasurer T
General Manager GM
Managing Director MD
Commissioner M
SOUTHERN
Name and Principal Address (a) Position
John C. Adams D
755 Lee Street
P. O. Box 272
Alexander City, AL 35011-0272
A. D. Correll D
133 Peachtree Street, N.E.
Atlanta, GA 30303
A. W. Dahlberg D,P,CEO
Paul J. DeNicola (c) D,EVP
Jack Edwards D
P. O. Box 123
Mobile, AL 36601
H. Allen Franklin (c) D,EVP
Bruce S. Gordon D
1095 Avenue of the Americas
New York, NY 10036
L. G. Hardman III D
P. O. Box 149
Commerce, GA 30529
Elmer B. Harris (b) D,EVP
Zack T. Pate D
700 Galleria Parkway
Atlanta, GA 303339
William J. Rushton, III D
P. O. Box 2606
Birmingham, AL 35202
Dr. Gloria M. Shatto D
P. O. Box 490610
Mount Berry, GA 30149
11
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
SOUTHERN (continued)
Name and Principal Address (a) Position
Gerald J. St. Pe' D
P. O. Box 149
Pascagoula, MS 39568
Herbert Stockham D
P. O. Box 130118
Birmingham, AL 35213
W. L. Westbrook FVP,CFO,T
Thomas G. Boren (e) SVP
Warren Y. Jobe SVP
Stephen A. Wakefield SVP,L
David R. Altman VP
C. Alan Martin VP
Charles D. McCrary (b) VP
Steven R. Spencer VP
Christopher C. Womack VP
Dr. W. Robert Woodall, Jr. VP
W. Dean Hudson (c) C
Tommy Chisholm S
ALABAMA
Name and Principal Address (b) Position
Whit Armstrong D
P. O. Box 900
Enterprise, AL 36331
David J. Cooper D
118 N. Royal Street
Mobile, AL 36602
A. W. Dahlberg (a) D
Peter V. Gregerson, Sr. D
644 Walnut Street
Gadsden, AL 35901
Elmer B. Harris D,P,CEO
Carl E. Jones, Jr. D
P. O. Box 2527
Mobile, AL 36622
Patricia M. King D
1501 South Quintard Avenue
Anniston, AL 36201
James K. Lowder D
2000 Interstate Park Drive
Suite 400
Montgomery, AL 36109
Wallace D. Malone, Jr. D
P. O. Box 2554
Birmingham, AL 35290
Thomas C. Meredith D
Chancellor of the University of
Alabama
401 Queen City Avenue
Tuscaloosa, AL 35401
William V. Muse D
Auburn University
107 Samford Hall
Auburn, AL 36849
John T. Porter D
1101 Martin L. King, Jr. Dr. S.W.
Birmingham, AL 35211
Robert D. Powers D
202 East Broad Street
Eufaula, AL 36027
Andreas Renschler D
Daimler-Chrysler AG
WERK 000 HPCT 103
70546 Stuttgard, Germany
C. Dowd Ritter, III D
P. O. Box 11007
Birmingham, AL 35288
William J. Rushton, III D
P. O. Box 2606
Birmingham, AL 35202
James H. Sanford D
1001 McQueen Smith Road South
Prattville, AL 36066
John C. Webb, IV D
125 W. Washington Street
Demopolis, AL 36732
Banks H. Farris EVP
Michael D. Garrett EVP
William B. Hutchins, III EVP,CFO
Charles D. McCrary EVP
James H. Miller, III SVP
Earl B. Parsons, Jr. SVP
Michael L. Scott SVP
Jacquelyn S. Shaia SVP
Christopher C. Womack SVP
Art P. Beattie VP,S,T
William W. Cooper VP
James M. Corbitt VP
W. Roy Crow VP
Thomas A. Fanning (a) VP
C. Stephen Fant VP
Robert Holmes, Jr. VP
Robin A. Hurst VP
C. Alan Martin (a) VP
Rodney O. Mundy VP,L
Donald W. Reese VP
Julian H. Smith, Jr. VP
William R. Smith VP
Susan N. Story VP
Cheryl G. Thompson VP
Anthony J. Topazi VP
Terry H. Waters VP
12
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
ALABAMA PROPERTY COMPANY
Name and Principal Address (b) Position
Elmer B. Harris D,P
William B. Hutchins, III D,VP
Susan N. Story D,VP
Art P. Beattie S,C
J. Randy DeRieux T
ALABAMA ENERGY PROVIDERS, INC.
Name and Principal Address (b) Position
Rodney O. Mundy D
Banks H. Farris D
William B. Hutchins, III D
Charles D. McCrary D
Michael L. Scott D,P
Art P. Beattie S,T
GEORGIA
Name and Principal Address (c) Position
Daniel P. Amos D
1932 Wynnton Road
Columbus, GA
Juanita Baranco D
7060 Jonesboro Road
Morrow, GA 30260
A. W. Dahlberg (a) D
William A. Fickling, Jr. D
P. O. Box 1976
Macon, GA 31202-1976
H. Allen Franklin D,P,CEO
L. G. Hardman III D
P. O. Box 149
Commerce, GA 30529
Warren Y. Jobe D,EVP
James R. Lientz, Jr. D
P. O. Box 4899
Atlanta, GA 30302-4899
G. Joseph Prendergast D
191 Peachtree Street, N.E.
Atlanta, GA 30303-1757
Herman J. Russell D
504 Fair Street, S.W.
Atlanta, GA 30313
Dr. Gloria M. Shatto D
P. O. Box 490610
Mount Berry, GA 30149
William Jerry Vereen D
P. O. Box 460
Moultrie, GA 31776-0460
Carl Ware D
P. O. Box Drawer 1734
Atlanta, GA 30301
William C. Archer, III EVP
Gene R. Hodges EVP
Charles D. McCrary EVP
David M. Ratcliffe EVP,CFO,T
Wayne T. Dahlke SVP
James K. Davis SVP
Robert H. Haubein, Jr. SVP
Leonard J. Haynes SVP
Fred D. Williams SVP
Judy M. Anderson VP,S
Robert S. Beason VP
Robert L. Boyer VP
M. A. Brown VP
J. L. Conn VP
Fred W. DeMent, Jr. VP
Thomas A. Fanning (a) VP
A. Bryan Fletcher VP
J. Kevin Fletcher VP
J. W. George VP
Craig S. Lesser VP
J. B. Manley VP
C. Alan Martin (a) VP
J. L. Martin, Jr. VP
Cliff Thrasher VP,C,CAO
Jeffrey L. Wallace VP
Christopher C. Womack VP
James A. Wilson VP
Dr. W. Robert Woodall, Jr. (a) VP
PIEDMONT
Name and Principal Address (c) Position
H. Allen Franklin D,P
David M. Ratcliffe D,EVP,T
Judy M. Anderson VP,S
GEORGIA POWER HOLDINGS
Name and Principal Address (c) Position
David M. Ratcliffe D,P,T
Judy M. Anderson VP,S
Charles O. Rawlins (a) VP
SEGCO
Name and Principal Address (b) Position
Robert L. Boyer (c) D
H. Allen Franklin (c) D,VP
Elmer B. Harris D,P
Robert H. Haubein, Jr. (c) D
William B. Hutchins, III D,VP
Charles D. McCrary D
Earl B. Parsons, Jr. D
13
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEGCO (continued)
Name and Principal Address (b) Position
David M. Ratcliffe D
Michael D. Garrett D
Art P. Beattie S,T
J. Randy DeRieux T
GULF
Name and Principal Address (d) Position
Travis J. Bowden D,P,CEO
Paul J. DeNicola (c) D
Fred C. Donovan, Sr. D
P. O. Box 13370
Pensacola, FL 32591
W. Deck Hull, Jr. D
P. O. Box 2266
Panama City, FL 32402
Joseph K. Tannehill D
10 Arthur Drive
Lynn Haven, FL 32444
Barbara H. Thames D
1450 Berryhill Road
Milton, FL 32570
F. M. Fisher, Jr. VP
J. E. Hodges, Jr. VP
C. Alan Martin (a) VP
Robert G. Moore VP
Arlan E. Scarbrough VP,CFO
Michael L. Scott (b) VP
Christopher C. Womack (a) VP
Ronnie R. Labrato C
Warren E. Tate S,T
ENERGIA de NUEVO LEON, S.A. DE C.V.
Name and Principal Address (e) Position
Marcelo Canales Clarion D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
William R. Easter D
Jean M. Fauvd D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Ismael Garza T. D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Tanenguy Le Marechal D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Raul Rangel Hinojosa D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
Santiago C. Reyes Retana D
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
W. Clay Smith D
Andres Gonzalez Sandoval S
Lazaro Cardenas 2400 Despacho
PD-11 PB Edificia Losoles,
Garza Garcia 66220 N. L. Mexico
MISSISSIPPI
Name and Principal Address (f) Position
Paul J. DeNicola (c) D
Edwin E. Downer D
7642 Poplar Springs Drive
Meridian, MS 39305
Dwight H. Evans D,P,CEO
Robert S. Gaddis D
P. O. Box 168
Laurel, MS 39440
Aubrey K. Lucas D
Box 5164
Hattiesburg, MS 39406
George A. Schloegel D
Hancock Bank
P. O. Box 4019
Gulfport, MS 39502
Philip J. Terrell D
701 West North Street
Pass Christian, MS 39571
Gene Warr D
2600 Beach Boulevard
Biloxi, MS 39531
H. Ed Blakeslee VP
Andrew J. Dearman, III VP
C. Alan Martin (a) VP
Don E. Mason VP
Michael W. Southern VP,CFO,
S,T
Frances V. Turnage C
MISSISSIPPI POWER SERVICES, INC.
Name and Principal Address (f) Position
H. Ed Blakeslee D
Andy J. Dearman, III D
Dwight H. Evans D
Don E. Mason D
Michael W. Southern D
Frances V. Turnage C
14
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
MOBILE ENERGY SERVICES HOLDINGS, INC.
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Thomas G. Boren D
Thomas V. Brown D
S. Marce Fuller D,P,CEO
Alan W. Harrelson D,VP
Gale E. Klappa D
Thomas J. Madden, III D
Richard J. Koch VP
Richard J. Pershing D
Fred Stimpson D
Cheryl G. Thompson D
James A. Ward D,VP,C
Tommy Chisholm (a) S
MOBILE ENERGY SERVICES COMPANY, LLC
Name and Principal Address (e) Position
Thomas G. Boren P,CEO
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Richard J. Koch VP,GM
Christopher Kysar VP
Mark R. Ogle VP
James A. Ward VP,C
Tommy Chisholm (a) S
SAVANNAH
Name and Principal Address (g) Position
Archie H. Davis D
P. O. Box 188
Savannah, GA 31402
Paul J. DeNicola (c) D
Walter D. Gnann D
P. O. Box 334
Springfield, GA 31329
G. Edison Holland, Jr. D,P,CEO
Robert B. Miller, III D
P. O. Box 8003
Savannah, GA 31412
Arnold M. Tenenbaum D
P. O. Box 2567
Savannah, GA 31498
W. Miles Greer VP
Kirby R. Willis VP,T,CFO
Christopher C. Womack (a) VP
Nancy Frankenhauser C,S
Southern Energy, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
A. W. Dahlberg (a) D
Paul J. DeNicola (c) D
H. Allen Franklin (c) D
Elmer B. Harris (b) D
W. L. Westbrook (a) D,VP
S. Marce Fuller EVP
Raymond D. Hill EVP,CFO
Richard J. Pershing EVP
Gale E. Klappa SVP
Vance N. Booker VP
Tommy Chisholm (a) VP,S
Anne M. Cleary VP
David T. Gallaspy VP
Alan W. Harrelson VP
J. R. Harris VP
Randall E. Harrison VP
J. William Holden, III VP,T
Ronald E. Leggett VP
Craig S. Lesser VP
William A. Maner, III VP
Richard F. Owen VP
David R. Rozier, Jr. VP
Barney S. Rush VP
James A. Ward VP,C
Asociados de Electricidad, S.A.
Name and Principal Address (h) Position
Ricardo Falabella D
Mariano F. Grondona D,S
J. William Holden, III (e) D,P
SEI y Asociados de Argentina, S.A.
Name and Principal Address (i) Position
Juan Carlos Apostolo D
J. Alfred Berrong D
Peter J. Davenport D
Ricardo Falabella D
Mariano F. Grondona D,S
J. William Holden, III (e) D,P
W. L. Westbrook (a) D
15
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Hidroelectrica Alicura, S.A.
Name and Principal Address (i) Position
Peter J. Davenport D
Alejandro Del Re D
Ruben A. Etcheberry D
Ricardo Falabella D,VP
Mariano F. Grondona D,S
J. William Holden, III (e) D,P
Ruben Mastrargello D
Santiago J. Bergada Moritan D
Juan C. Santos D
William L. Westbrook (a) D
Southern Electric, Inc.
Name and Principal Address (e) Position
Richard J. Pershing D,VP
James A. Ward D,VP,T
Thomas G. Boren P,CEO
Tommy Chisholm (a) S
Raymond D. Hill VP,CFO
Barney S. Rush VP
Southern Energy International, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D
Richard J. Pershing D
James A. Ward D,P
Raymond D. Hill VP,T
Tommy Chisholm (a) S
Southern Energy - Newco 2, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D
Richard J. Pershing D
James A. Ward D,P
Raymond D. Hill VP,T
Tommy Chisholm (a) S
SEI Chile, S.A.
Name and Principal Address (j) Position
Christopher Darnell D
J. William Holden III (e) D
Jorge Granic Latorre D
Empresa Electrica del Norte Grande, S.A.
Name and Principal Address (k) Position
Edgardo Boeninger Kausel D
Edmundo Dupre Echeverria D
J. William Holden, III (e) D
Mark S. Lynch CEO
Marcelo Trivelli Oyarzun D
Richard J. Pershing D
Jeffrey A. Spencer CFO
W. L. Westbrook (a) D
Sitranor S. A.
Name and Principal Address (k) Position
Mario Espinoza Duran D
Oscar Moscoso Fabres D
Ricardo Campano Gandara D
Jerry Honeycutt D
Mark S. Lynch D
Eduardo Zuniga Pacheco D
Carlos Larrain Pena D
Luis Hormazibal Villagran D
Pedro Artiagoitia Artave CEO
Energia del Pacifico Limitada
Name and Principal Address (k) Position
Jorge Granic Latorre D
Carlos Larrain Pena D
Mark S. Lynch CEO
Jeffrey A. Spencer CFO
16
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEBH
Name and Principal Address (e) Position
Thomas G. Boren D,P
J. William Holden, III D,VP
Richard J. Pershing D,VP
Raymond D. Hill VP,T,CFO
Ronald E. Leggett VP
James A. Ward C
Tommy Chisholm (a) S
Southern Electric Bahamas Ltd.
Name and Principal Address (e) Position
Thomas G. Boren D,P
J. William Holden, III D,VP
Richard J. Pershing D,VP
Raymond D. Hill VP,T,CFO
Ronald E. Leggett VP
Tommy Chisholm (a) S
James A. Ward C
Freeport Power Company Limited
Name and Principal Address Position
Thomas G. Boren (e) D
Larry R. Brantley D,P,CEO
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
Jack A. Hayward D
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
J. William Holden, III (e) D
Albert J. Miller D
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
Richard J. Pershing (e) D
Edward P. St. George D
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
Raymond D. Hill VP,CFO
Ian O. Barry VP,T
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
Willie A. M. Moss VP,S
P. O. Box F-40888
Freeport, Grand Bahama Island,
Bahamas
SEI Beteiligungs GmbH
Name and Principal Address (e) Position
Thomas G. Boren D,MD
Barney S. Rush D,MD
James A. Ward D,MD
P. T. Tarahan Power Company
Name and Principal Address (e) Position
Tanri Abeng M
Ir. Aburizal Bakrie P,M
Thomas G. Boren M
David T. Gallaspy M
Mintarto Halim M
Ronald E. Leggett M
Mark S. Lynch M
Soy M. Pardede M
Richard J. Pershing M
George S. Tahija M
James A. Ward M
Raymond V. Haley P,D
Thomas K. Amster D
Lekir A. Daud D
Ir. Arjono D. Kamarga D
Amin M. Lakhani D
Southern Electric Brasil Participacoes Ltda.
Name and Principal Address Position
Pedro Paulo Cristofaro D
Av Almirante Barroso,
No. 52, 5 Andar
Rio de Janeiro, Brasil CEP 20031
Julian Fonseca Pena Chediak D
Av Almirante Barroso,
No. 52, 5 Andar
Rio de Janeiro, Brasil CEP 20031
17
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southern Electric International - Europe, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Richard J. Pershing D
Barney S. Rush D
James A. Ward D,VP,T
Tommy Chisholm (a) S
Gasoducto Nor Andino Argentina S.A.
Name and Principal Address (e) Position
Conrado Bianchi D
Walter Cole D
Richardo Falabella D
Jan Flachet D,VP
Willy Heyselberghs D,P
Mark S. Lynch D
Andre van der Bogaert D
Gasoducto Nor Andino S.A.
Name and Principal Address (e) Position
Chrisitan Biebuyck D
Willy Heyselberghs D,P
Jerry Honeycutt D
Mark S. Lynch D
Philip Olivier D
Jeffery A. Spencer D
Andre van der Bogaert D
Southern Electric International Finance, Inc.
Name and Principal Address (e) Position
James J. Coppola, Jr. D
D. R. Rozier, Jr. D,VP
L. Terry Turner D
William R. Bechstein D,VP
James A. Ward P
Raymond D. Hill VP,T
Patricia L. Roberts (a) S
Southern Energy Development - Europe Limited
Name and Principal Address (e) Position
Thomas G. Boren MD
Jason C. Harlan MD
Raymond D. Hill MD
Miles W. McHugh MD
Richard J. Pershing MD
Barney S. Rush MD
James A. Ward MD
Southern Energy Netherlands Ltd,
Name and Principal Address (e) Position
Thomas G. Boren D,P
S. Marce Fuller D
Raymond D. Hill D,VP,CFO
Richard J. Pershing D,VP
John J. Robinson D,VP
Barney S. Rush D
James A. Ward D,VP,T
William L. Westbrook (a) D
Steve Byone VP
Tommy Chisholm (a) S
18
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
The Southern Company - Europe plc
Name and Principal Address (e) Position
Thomas G. Boren D,CEO
Raymond D. Hill D
Richard Owen D
Richard J. Pershing D
James A. Ward D
Miles W. McHugh S
Southern Energy UK Generation Limited
Name and Principal Address (e) Position
Thomas G. Boren D
Sam H. Dabbs, Jr. (a) D
Richard J. Pershing D
Roabert H.W. Powell D
Patricia L. Roberts (a) D
James A. Ward D
Tommy Chisholm (a) S
Southern Investments UK plc
Name and Principal Address (e) Position
Accentacross Limited D
Carson B. Harreld D,CFO,CAO
William P. Bowers D
Mighteager Limited D
Richard J. Pershing D,CEO
C. Philip Saunders D
Robert A. Symons D
Miles W. McHugh S
South Western Electricity plc
Name and Principal Address (l) Position
William P. Bowers D,CEO
Carson B. Harreld D
Roger L. Petersen D
C. Philip Saunders D
Robert A. Symons D
Robin D. Edmunds S
Southern Electric International Trinidad, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Richard Owen D
Richard J. Pershing D
James A. Ward D,VP
J. William Holden, III VP
Tommy Chisholm (a) S,T
Southern Electric International, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D
James A. Ward D,VP,T
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Richard J. Pershing VP
Tommy Chisholm S
19
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
The Power Generation Company of
Trinidad and Tobago Limited
Name and Principal Address Position
Ronald Chan D
Scotia Centre
Cr. Park and Richmond Streets
Port of Spain, Trinidad, W.I.
Barbara Fagan D
200 Westlake Park Blvd.
Houston, TX 77253
J. William Holden, III (e) D
Ronald E. Leggett (e) D
John MacKay D
6 St. Kitts Avenue
Federation Park, Trinidad, W. I.
Judith Morris D
63 Frederick Street
Port of Spain, Trinidad, W.I.
Larry M. Porter D,GM
6A Queens Park West,
First Floor
Port of Spain, Trinidad, W.I.
Jacqueline Quamina D
Eric Williams Plaza
Independence Square
Port of Spain, Trinidad, W.I.
Chandrabhan Sharma D
University of the West Indies
St. Augustine, Trinidad, W.I.
W. L. Westbrook (a) D
Charmaine
Pemberton-Carrington S
63 Frederick Street
Port of Spain, Trinidad, W.I.
Southern Energy - Asia, Inc.
Name and Principal Address (e) Position
Edwin H. Adams D,VP
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
Thomas G. Boren D,P
A. W. Dahlberg (a) D
Raymond D. Hill D,EVP
Dean Koch D,VP
Frederick D. Kuester D,VP
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
Richard J. Pershing D,VP
James A. Ward D,VP,T
S. Marce Fuller VP
Tommy Chisholm (a) S
20
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
SCS
Name and Principal Address (c) Position
A. W. Dahlberg (a) D
Paul J. DeNicola D,P,CEO
H. Allen Franklin D
Elmer B. Harris (b) D
Kerry E. Adams (n) EVP
C. Alan Martin (a) EVP
Charles D. McCrary (b) EVP
David M. Ratcliffe EVP
Stephen A. Wakefield (a) EVP
W. L. Westbrook (a) EVP
Robert S. Beason SVP
Thomas A. Fanning (a) SVP
Robert H. Haubein SVP
Leonard J. Haynes SVP
W. Dean Hudson SVP,C,CFO
William K. Newman (b) SVP
Earl B. Parsons, Jr. (b) SVP
Michael L. Scott SVP
Steven R. Spencer (a) SVP
Christopher C. Womack (a) SVP
David R. Altman (a) VP
I. Otis Berkhan VP
Robert L. Boyer VP
Tommy Chisholm (a) VP,S,L
David L. Coker VP
James L. Conn VP
A. J. Connor (b) VP
Andrew J. Dearman, III (f) VP
Douglas E. Dutton (n) VP
James C. Fleming (a) VP
J. Kevin Fletcher VP
Dr. C. H. Goodman (b) VP
Douglas E. Jones (a) VP
Allen L. Leverett (a) VP
Charles D. Long, IV (b) VP
William L. Marshall, Jr. (b) VP
J. Mike McClure VP
Karl R. Moor VP
1130 Connecticut Avenue, NW
Washington, DC 20036
Robert G. Moore (d) VP
Rodney O. Mundy (b) VP
Earl B. Parsons, III (a) VP
James P. Sale (a) VP
Bertram E. Sears VP
Jerry L. Stewart (b) VP
Dr. W. Robert Woodall, Jr. (a) VP
John F. Young (a) VP
Charles O. Rawlins (a) T
Southern LINC
Name and Principal Address (m) Position
A. W. Dahlberg (a) D
Robert G. Dawson D,P,CEO
Paul J. DeNicola (c) D
H. Allen Franklin (c) D
Elmer B. Harris (b) D
W. L. Westbrook (a) D
R. Craig Elder D,VP,T
Tommy Chisholm (a) S
Southern Resources
Name and Principal Address (e) Position
Thomas G. Boren D,P,CEO
A. W. Dahlberg (a) D
Paul J. DeNicola (c) D,VP
H. Allen Franklin (c) D
Elmer B. Harris (b) D
W. L. Westbrook (a) D,VP
S. Marce Fuller EVP
Raymond D. Hill EVP,CFO
Richard J. Pershing EVP
Gale E. Klappa SVP
Vance N. Booker VP
Tommy Chisholm (a) VP,S
Anne M. Cleary VP
David T. Gallaspy VP
Alan W. Harrelson VP
J. R. Harris VP
Randall E. Harrison VP
J. William Holden, III VP,T
Ronald E. Leggett VP
Craig S. Lesser VP
William A. Maner, III VP
Richard Owen VP
David R. Rozier, Jr. VP
Barney S. Rush VP
James A. Ward VP,C
SEI Operadora de Argentina, S.A.
Name and Principal Address (i) Position
Ricardo Falabella D,VP
J. William Holden, III (e) D,P
Ronald E. Leggett (e) D
Mariano F. Grondona S
21
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART I. (Continued)
Southern Electric International - Asia, Inc
Name and Principal Address (e) Position
Thomas G. Boren D,P
Raymond D. Hill D,VP,CFO
James A. Ward D,T
Tommy Chisholm (a) S
Southern Electric International GmbH
Name and Principal Address (e) Position
Thomas G. Boren GM
Tommy Chisholm (a) GM
Jason C. Harlan GM
Raymond D. Hill GM
Richard J. Pershing GM
Barney S. Rush GM
James A. Ward GM
SERC
Name and Principal Address (n) Position
Charles D. McCrary (b) D,P
T. Roy Harrell VP
Earl B. Parsons, Jr. (b) VP
Larry M. Porter (e) VP
Tommy Chisholm (a) S,T
Southern Nuclear
Name and Principal Address (o) Position
A. W. Dahlberg (a) D
Paul J. DeNicola (c) D
H. Allen Franklin (c) D
William G. Hairston, III D,P,CEO
Elmer B. Harris (b) D
Jackie D. Woodard EVP
James B. Beasley VP
John O. Meier VP,L
D. N. Morey, III VP
H. Lewis Sumner, Jr. VP
Christopher C. Womack (a) VP
Kathleen S. King C,T,CFO
Sherry A. Mitchell S
Energy Solutions
Name and Principal Address (c) Position
Robert S. Beason D
J. Kevin Fletcher D
J. Thomas Kilgore, Jr. D
Allen L. Leverett (a) D,T
William T. Orr (e) D
C. Alan Martin (a) D
Michael L. Scott (b) D
Bertram E. Sears D,P
W. L. Westbrook (a) D
Thomas R. Thames VP,GM
Tommy Chisholm (a) S
Southern Energy Finance Company, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Raymond D. Hill D,VP,CFO
James A. Ward D,VP,T
S. Marce Fuller VP
Christopher J. Kysar VP
Tom Mathew VP
Tommy Chisholm (a) S
EPZ Lease, Inc.
Name and Principal Address (e) Position
William R. Bechstein D,VP
1105 N. Market Street
Suite 1300
Wilmington, DE 19801
David R. Rozier, Jr. D,VP,T
L. Terry Turner D
Christopher J. Kysar VP
Tom Mathew VP
James A. Ward P
Patricia L. Roberts (a) S
22
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
EPZ Lease, L.L.C.
Name and Principal Address (e) Position
Christopher J. Kysar Officer
Tom Mathew Officer
John Rachford Officer
EPZ Holding A, L.L.C.
Name and Principal Address (e) Position
Christopher J. Kysar Officer
Tom Mathew Officer
John Rachford Officer
EPZ Holding B, L.L.C.
Name and Principal Address (e) Position
Christopher J. Kysar Officer
Tom Mathew Officer
John Rachford Officer
EPZ Holding C, L.L.C.
Name and Principal Address (e) Position
Christopher J. Kysar Officer
Tom Mathew Officer
John Rachford Officer
Southern Energy North America, Inc.
Name and Principal Address (e) Position
Vance N. Booker D
Thomas G. Boren D,P
S. Marce Fuller D,VP
Alan W. Harrelson D
Randal E. Harrison D
Richard J. Pershing D,VP
James A. Ward D,C
W. L. Westbrook (a) D
Raymond D. Hill VP,T,CFO
Ronald E. Leggett VP
Tommy Chisholm (a) S
Southern Energy Trading and Marketing, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Thomas A. Fanning (a) D
S. Marce Fuller D,EVP
Raymond D. Hill D,VP,CFO
Richard J. Pershing D
James A. Ward D,VP,T,C
W. L. Westbrook (a) D
Steve Byone VP
Alexander Eydeland VP
David T. Gallaspy VP
Donald R. Jefferis VP
Gary T. Morsches VP
O. Jay Oates, II VP
William T. Orr VP
John W. Ragan VP
John J. Robinson VP
Mark J. D. Streater VP
Christopher Turner VP
Tommy Chisholm (a) S
SEI Birchwood, Inc.
Name and Principal Address (e) Position
Kerry E. Adams (n) D
Vance N. Booker D
Thomas G. Boren D
Gale E. Klappa D,P
Alan W. Harrelson D,VP
Richard J. Pershing D
David R. Rozier, Jr. D,VP,CFO,T
Peter R. Leighton VP
James A. Ward VP,C
Tommy Chisholm (a) S
Dutch Gas Lease, Inc.
Name and Principal Address (e) Position
William R. Bechstein D
James J. Coppola, Jr. D
David R. Rozier, Jr. D
R. Terry Turner D
James A. Ward P
Christopher J. Kysar VP
Tom Mathew VP
Patricia L. Roberts (a) S
23
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEI Hawaiian Cogenerators, Inc.
Name and Principal Address (e) Position
Kerry E. Adams (n) D,VP
Thomas G. Boren D,P
W. L. Westbrook (a) D
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Tommy Chisholm (a) S
James A. Ward T
Southern Energy - Cajun, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D
S. Marce Fuller D
Richard J. Pershing D
Randall E. Harrison D,VP
James A. Ward D,VP,T
Raymond D. Hill VP,CFO
Gary J. Kubik VP
John J. Robinson VP
Tommy Chisholm (a) S
SEI State Line, Inc.
Name and Principal Address (e) Position
Kerry E. Adams D
Vance N. Booker D
Thomas G. Boren D
S. Marce Fuller D
Alan W. Harrelson D,VP
Randall E. Harrison D,VP
Gale E. Klappa D
Richard J. Pershing D
James A. Ward D,VP,T
Raymond D. Hill VP,CFO
Gary J. Kubik VP
Steve Owen VP
David R. Rozier, Jr. VP,CFO,T
Tunstall P. Rushton VP
Tommy Chisholm (a) S
PowerCall, Inc.
Name and Principal Address (c) Position
Robert S. Beason D
J. Kevin Fletcher D
J. Thomas Kilgore, Jr. D
Allen L. Leverett (a) D,T
C. Alan Martin D
William T. Orr D
Michael L. Scott (b) D
Bertram E. Sears D,P
Michael E. Britt VP
Tommy Chisholm (a) S
24
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southern Telecom, Inc.
Name and Principal Address (c) Position
Robert S. Beason D
J. Kevin Fletcher D
J. Thomas Kilgore, Jr. D
Allen L. Leverett (a) D,T
C. Alan Martin (a) D
Michael L. Scott (b) D
Bertram E. Sears D,P
William L. Westbrook (a) D
William T. Orr D
Michael E. Britt VP
Tommy Chisholm (a) S
Cayman Energy Traders
Name and Principal Address Position
Dennis W. Bakke D
J. William Holden, III D
Barry J. Sharp D
William R. Lurasch S
Consolidated Electric Power Asia
Name and Principal Address Position
Edwin H. Adams D
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
Edgardo Bautista D
Thomas G. Boren (e) D
A. W. Dahlberg (a) D
Raymond D. Hill D
Dean G. Koch D
Frederick D. Kuester D
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
Richard J. Pershing D
SC Ashwood Holdings, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
S. Marce Fuller D,EVP
James A. Ward D,VP,T,C
Donald R. Jefferis VP
Gary J. Morsches VP
John J. Robinson VP
Tommy Chisholm (a) S
SC Energy Ventures, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
S. Marce Fuller D,EVP
James A. Ward D,VP,T,C
Donald R. Jefferis VP
Gary J. Morsches VP
John J. Robinson VP
Tommy Chisholm (a) S
SEI Wordwide Holdings, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P,CEO
Richard J. Pershing D,VP
James A. Ward D,VP,T
Raymond D. Hill VP,CFO
Barney S. Rush VP
Tommy Chisholm (a) S
Southern Energy Development - Europa GmbH
Name and Principal Address (e) Position
Thomas G. Boren D
Jason C. Harlan D
Miles W. McHugh D
Richard J. Pershing D
Barney S. Rush D
James A. Ward D
Southern Energy Asia Ventures, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
James A. Ward D,VP
Raymond D. Hill VP,CFO
Edwin H. Adams VP
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
S. Marce Fuller VP
Dean G. Koch VP
Richard J. Pershing VP
Tommy Chisholm (a) S
25
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEI Germany - BEWAG, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P,CEO
Richard J. Pershing D, VP
Barney S. Rush D,VP
James A. Ward D,VP,T
Raymond D. Hill VP,CFO
Richard J. Pershing VP
Tommy Chisholm (a) S
SEI Worldwide Holdings, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P,CEO
Richard J. Pershing D,VP
James A. Ward D,VP,T
Raymond D. Hill VP, CFO
Barney S. Rush VP
Tommy Chisholm (a) S
Southern Company Capital Funding, Inc.
Name and Principal Address (a) Position
William R. Bechstein (e) D
James J. Coppola, Jr. D
D. R. Rozier, Jr. (e) D
L. Terry Turner (e) D
William L. Westbrook D, P,CEO
Charles N. Eldred VP,T
Charles O. Rawlins VP, CFO
Patricia L. Roberts VP,S
Southern Energy Clairton, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
James A. Ward D,VP,T
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Tommy Chisholm (a) S
Southern Energy Clairton 2, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
James A. Ward D,VP,T
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Tommy Chisholm (a) S
Southern Energy Clairton, L.L.C.
Name and Principal Address (e) Position
Thomas G. Boren P
S. Marce Fuller VP
Raymond D. Hill VP,CFO
Christopher J. Kysar VP
James A. Ward VP,T
Charles H. Wilson VP
Tommy Chisholm (a) S
Southern Energy do Brasil Ltda.
Name and Principal Address (e) Position
Rodolpho de Oliveira Franco M
Protasio
Southern Energy E Associados Participacoes,S.A.
Name and Principal Address (e ) Position
Monica Maria Correa Moreira D,VP
Carneiro
Kevin L. Mundie D,P
26
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southen Energy Retail Trading and
Marketing, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Thomas A. Fanning (a) D
S. Marce Fuller D,EVP
Raymond D. Hill D,VP,CFO
Richard J. Pershing D
James A. Ward D,VP,T
William L. Westbrook (a) D
Donald R. Jerreris VP
Gary J. Morsches VP
John J. Robinson VP
Tommy Chisholm (a) S
SEI Worldwide Holdings Beteiligungsgesellschaft mbH
Name and Principal Address (e) Position
Thomas G. Boren D
Mark R. Ogle D
Richard J. Pershing D
Barney S. Rush D
James A. Ward D
SE China Investments, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P,CEO
James A. Ward D,VP,T
Edwin H. Adams VP
18/F Hong Kong Telecom Tower
979 King's Road
Quarry Bay, Hong Kong
Raymond D. Hill VP,CFO
Patricia L. Roberts (a) S
Southern Energy Mauritius Limited
Name and Principal Address (e) Position
Thomas G. Boren D
David R. Rozier, Jr. D
SEMAR Limited
Name and Principal Address (e) Position
James J. Coppola, Jr. D
SEI Brazil Holdings, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
J. William Holden, III D,VP
Richard J. Pershing D,VP
James A. Ward D,VP, T
Tommy Chisholm (a) S
SEI South America, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
J. William Holden, III D,VP
Richard J. Pershing D,VP
James A. Ward D,VP, T
Tommy Chisholm (a) S
Southern Energy Caribe, Ltd.
Name and Principal Address (e) Position
Thomas G. Boren D,P
Richard J. Pershing D,VP
James A. Ward D,VP,T
Richard Owen VP
Tommy Chisholm (a) S
27
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southern Energy - Europe, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
James A. Ward D,VP,T
Richard J. Pershing VP
Patricia L. Roberts (a) S
Southern Energy Europe Investments, Ltd.
Name and Principal Address (e) Position
Thomas G. Boren P
William R. Bechstein VP
Raymond D. Hill VP,CFO
Richard J. Pershing VP
James A. Ward VP,T
Tommy Chisholm (a) S
SWEB Holdings UK
Name and Principal Address (e) Position
Robert D. Fagan D
Stephen J. Feerrar D
Carson B. Harreld D
Gale E. Klappa D
Dale Kleppinger D
Richard J. Pershing D
Roger L. Petersen D
C. Philip Saunders D
Robert A. Symons D
Miles W. McHugh S
SWEB Holdings Limited
Name and Principal Address (e) Position
Robert D. Fagan D
Carson B. Harreld D
Gale E. Klappa D
Richard J. Pershing D
Roger L. Petersen D
C. Philip Saunders D
Robert A. Symons D
Miles W. McHugh S
Southern Energy Development Hungaria LLC
Name and Principal Address (e) Position
Jason C. Harlan D
Southern Energy Carbontronics, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
James A. Ward D,VP,T
S. Marce Fuller VP
Raymond D. Hill Vp,CFO
Christopher J. Kysar VP
Tommy Chisholm (a) S
State Line Holding Corporation
Name and Principal Address (e) Position
Kerry E. Adams D
Vance N. Booker D
Thomas G. Boren D,P
S. Marce Fuller D,VP
Alan W. Harrelson D,VP
Randall E. Harrison D
Richard J. Pershing D
David R. Rozier, Jr. D
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy Southwest Investments, Inc.
Name and Principal Address (e) Position
William R. Bechstein D,VP
S. Marce Fuller D,P
David R. Rozier, Jr. D,VP,T
Gary J. Kubik VP
Sam H. Dabbs, Jr. (a) S
Southern Energy Texas (G.P.), Inc.
Name and Principal Address (e) Position
Randall E. Harrison D,VP
James A. Ward D,VP,T
Richard J. Pershing P
Tommy Chisholm (a) S
Greenhost, Inc.
Name and Principal Address (e) Position
Thomas J. Bonner D
Alan W. Harrelson D
George P. Henefield D,P
James R. Pagano D
Thomas F. Schwartz D
Stephen G. Gillis D,CFO,S
28
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Mobile Development Company
Name and Principal Address (e) Position
Thomas G. Boren D,P
James W. Ward D,VP,T
S. Marce Fuller VP
David T. Gallaspy VP
Alan W. Harrelson VP
Patricia L. Roberts (a) S
SEI New England Holding Corp.
Name and Principal Address (e) Position
James A. Ward D,VP,C
Richard J. Pershing D,P
Vance N. Booker VP
S. Marce Fuller VP
Alan W. Harrelson VP
Randall E. Harrison VP
Gary J. Kubik VP
David R. Rozier, Jr. VP,CFO,T
Patricia L. Roberts (a) S
SEI New England Inc.
Name and Principal Address (e) Position
James A. Ward D,VP,C
Richard J. Pershing P
Vance N. Booker VP
S. Marce Fuller VP
Alan W. Harrelson VP
Randall E. Harrison VP
Gary J. Kubik VP
David R. Rozier, Jr. VP,CFO,T
Patricia L. Roberts (a) S
Southern Energy Canal III, Inc.
Name and Principal Address (e) Position
Richard J. Pershing P
Henry T. E. Coolidge, Jr. VP
Norman E. Cowden VP
Alan W. Harrelson VP
Randall E. Harrison VP
Robert A. Hayes VP
Gary J. Kubik VP
David R. Rozier,Jr. VP,CFO,T
James A. Ward VP,C
Sam H. Dabbs, Jr. (a) S
Southern Energy Canal LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Vance N. Booker VP
Norman E. Cowden VP
S. Marce Fuller VP
Alan W. Harrelson VP
Randall E. Harrison VP
Gary J. Kubik VP
David R. Rozier,Jr. VP,CFO,T
James A. Ward VP,C
Patricia L. Roberts (a) S
Southern Energy Kendall LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Vance N. Booker VP
S. Marce Fuller VP
Alan W. Harrelson VP
Randall E. Harrison VP
Gary J. Kubik VP
David R. Rozier,Jr. VP,CFO,T
James A. Ward VP,C
Patricia L. Roberts (a) S
Newington Energy, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Vance N. Booker VP
Norman E. Cowden VP
S. Marce Fuller VP
Alan W. Harrelson VP
Randall E. Harrison VP
Gary J. Kubik VP
David R. Rozier,Jr. VP,CFO,T
James A. Ward VP,C
Patricia L. Roberts (a) S
SEI Wisconsin Holdings, Inc.
Name and Principal Address (e) Position
Richard J. Pershing D
Thomas G. Boren P
Oscar Perticone SVP
S. Marce Fuller VP
Randall E. Harrison VP
Rodeny E. Sears VP
James A. Ward VP,T
Tommy Chisholm (a) S
29
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
SEI Wisconsin LLC
Name and Principal Address (e) Position
Thomas G. Boren P
Richard J. Pershing SVP
S. Marce Fuller VP
Randall E. Harrison VP
Rodeny E. Sears VP
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy California, Inc.
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
Kim Heinz VP
Brooks Kaufman VP
Gary J. Kubik VP
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy Bay Area Investments, Inc.
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
Kim Heinz VP
Brooks Kaufman VP
Gary J. Kubik VP
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy Potrero, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
Kim Heinz VP
Brooks Kaufman VP
Gary J. Kubik VP
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy Delta, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
Kim Heinz VP
Brooks Kaufman VP
Gary J. Kubik VP
James A. Ward VP,T
Tommy Chisholm (a) S
Southern Energy Ventures, Inc.
Name and Principal Address (e) Position
Thomas G. Boren D,P
S. Marce Fuller D,VP
James A. Ward D,C
Raymond D. Hill VP,CFO
Ronald E. Leggett VP
Richard J. Pershing VP
Tommy Chisholm (a) S
Southern Company Energy Marketing G.P., LLC
Name and Principal Address (e) Position
Thomas G. Boren Class A Rep
Charles D. Davidson Class B Rep
S. Marce Fuller Class A Rep,
CEO,P
Phillip A. Gobe Class B Rep
Richard J. Pershing Class A Rep
Steven J. Shapiro Class B Rep
William L. Westbrook (a) Class A Rep
Joseph P. Catasein VP
Alexander Eydeland VP
Donald R. Jefferis VP
Billy E. Johnson VP
Gary J. Morsches VP
William T. Orr VP
John W. Ragan VP
JoAnn P. Russell VP,S
Michael L. Smith VP,CFO
David Stewart VP
Mark J.D. Streater VP
Christopher W. Turner VP
Southern Company Energy Marketing LP
Name and Principal Address (e) Position
Lisa D. Johnson VP
S. Marce Fuller P,CEO
Michael L. Smith CFO
Joseph P. Catasein VP
Alexander Eydeland VP
Gerald Fleming VP
Donald R. Jeggeris VP,CIO
Billie E. Johnson VP
Gary J. Morsches SVP,COO
William T. Orr VP
John W. Ragan VP
Sailesh Ramamurtie Risk Control
Officer
JoAnn P. Russell VP,L,S
David Stewart VP
Mark J.D. Streater VP
Christopher W. Turner VP
30
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. (Continued)
Southern Energy New York G.P., Inc.
Name and Principal Address (e) Position
James A. Ward D,VP,C
Richard J. Pershing P
Randall E. Harrison VP
Tommy Chisholm (a) S
Southern Energy Lovett, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
James A. Ward VP,C
Tommy Chisholm (a) S
Southern Energy Bowline, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
Randall E. Harrison VP
James A. Ward VP,C
Tommy Chisholm (a) S
Southern Energy NY-Gen, LLC
Name and Principal Address (e) Position
Richard J. Pershing P
James A. Ward VP,C
Southern Energy Hudson Valley Investments, Ltd.
Name and Principal Address (e) Position
David R. Rozier, Jr. D,VP,T
Gale E. Klappa P
Gary J. Kubik VP
Sam H. Dabbs, Jr. (a) S
31
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections.
<TABLE>
<CAPTION>
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
- ------------------------------------------------------------------------------------------------------------------
Rule No. 70
Subdivision
<S> <C> <C> <C>
Whit Armstrong The Citizens Bank Chief Executive (c)
Enterprise, AL Officer,
Chairman of the Board
of Directors and President
Enterprise Capital Corporation Chairman of the Board of
Enterprise, AL Directors, President (c)
David J. Cooper SouthTrust Bank, N.A., Birmingham, AL Director (a);(c)
A. D. Correll SunTrust Bank of Georgia, Atlanta, GA Director (a)
SunTrust Banks Inc., Atlanta, GA Director (a)
W. Roy Crow Barbour County Bank, Eufaula, AL Director (f)
A. W. Dahlberg SunTrust Bank of Georgia Director (a);(c)
Atlanta, GA
SunTrust Banks, Inc., Atlanta, GA Director (a);(c)
Archie H. Davis The Savannah Bancorp, Savannah, GA President, Chief Executive
Officer (c)
The Savannah Bank N.A., Savannah, GA President, Chief Executive
Officer (c)
Bryan Bank & Trust, Richmond Hill, GA Director (c)
H. Allen Franklin SouthTrust Bank, Birmingham, AL Director (a);(c)
L. G. Hardman III First Commerce Bancorp, Inc. Chairman of the Board
Commerce, GA of Directors and Chief
Executive Officer (a);(c);(g)
First National Bank of Commerce, Chairman of the
Commerce, GA Board of Directors (c);(g)
Elmer B. Harris AmSouth Bancorporation, Director (a);(c);(e);(f)
Birmingham, AL
AmSouth Bank of Alabama,
Birmingham, AL Director (a);(c);(e);(f)
G. Edison Holland, Jr. SunTrust Bank, Savannah, GA Director (c)
Carl E. Jones Regions Financial Corporation, President , Chief
Birmingham, AL Executive Officer
and Director (c)
Patricia M. King Regions Bank, Anniston, AL Director (c)
James R. Lientz, Jr. NationsBank, N.A., Atlanta, GA President, Director (c)
Wallace D. Malone SouthTrust Corporation, Birmingham, AL Chairman of the Board
of Directors and Chief
Executive Officer (c)
William V. Muse SouthTrust Corporation, Birmingham, AL Director (c)
John T. Porter Citizens Federal Bank, Birmingham, AL Director (c)
Robert D. Powers Colonial Bank, Eufaula, AL Director (c)
</TABLE>
32
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS. Part II. Financial Connections. (Continued)
Name of Officer Name and Location Position Held in Applicable
or Director of Financial Institution Financial Institution Exemption Rule
- ------------------------------------------------------------------------------------------------------------------
Rule No. 70
Subdivision
<S> <C> <C> <C>
G. Joseph
Prendergast Wachovia Bank of Georgia, N.A. Chairman of the
Atlanta, GA Board of Directors (c)
Wachovia Bank of South Carolina Chairman of the
Board of Directors (d)
Wachovia Bank of North Carolina Chairman of the
Board of Directors (d)
Wachovia Corporation, Atlanta, GA Senior Executive
Vice President (d)
C. Dowd Ritter, III AmSouth Bancorporation, Birmingham, AL Chairman, Chief
Executive Officer (c)
AmSouth Bank, Birmingham, AL Chairman, Chief
Executive Officer (c)
Herman J. Russell Citizens Trust Bank, Atlanta, GA Chairman of the
Board of Directors (c)
Citizens Bancshares Corp. Atlanta, GA Chairman of the
Board of Directors (c)
Wachovia Corporation of Georgia, Director (c)
Atlanta, GA
George A. Schloegel Hancock Bank - Mississippi, Gulfport, MS Director and
President (c)
Hancock Holding Company, Gulfport, MS Vice Chairman of
the Board
of Directors (c)
Hancock Bank - Louisiana, Baton Rouge
Louisiana Director (d)
William R. Smith SouthTrust Bank of Calhoun County, N.A.
Anniston, AL Director (f)
Gerald St. Pe' Merchants & Marine Bank, Pascagoula, MS Director (a)
Arnold M.
Tenenbaum First Union National Bank of Georgia, Director (c)
Atlanta, GA
First Union National Bank of Savannah, Director (c)
Savannah, GA
Gene Warr Coast Community Bank, Biloxi, MS Director (c)
</TABLE>
33
<PAGE>
ITEM 6. EXECUTIVE COMPENSATION. PART III.
(a) Summary Compensation Tables. The following tables set forth
information concerning any Chief Executive Officer and the four most highly
compensated executive officers for SCS, Southern Resources, Southern LINC,
Energy Solutions and Southern Nuclear serving as of December 31, 1998, as
defined by the Securities and Exchange Commission. ALABAMA, GEORGIA, GULF,
MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers III-13
through III-18 in the SOUTHERN system's combined Form 10-K for the year ended
December 31, 1998. Incorporated by reference to "Summary Compensation Table"
under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to
the 1999 annual meeting of stockholders.
Key terms used in this Item will have the following meanings:-
ESP......................................... Employee Savings Plan
ESOP........................................ Employee Stock Ownership Plan
SBP......................................... Supplemental Benefit Plan
ERISA....................................... Employee Retirement Income
Security Act
<TABLE>
<CAPTION>
SCS
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
A. W. Dahlberg 1998 897,820 218,625 11,067 161,757 438,061 50,135
Director 1997 817,644 206,250 27,485 135,882 433,247 49,766
1996 782,409 118,534 6,833 154,610 770,216 43,850
Paul J. DeNicola 1998 448,531 144,600 14,709 24,139 242,539 25,342
President, Chief 1997 416,452 62,980 8,731 29,638 239,874 25,493
Executive Officer, 1996 400,491 56,520 3,325 26,330 426,442 22,894
Director
Stephen Wakefield 1998 328,080 104,401 3,279 13,614 - 6,446
Executive Vice 1997 103,846 51,000 9,171 16,070 - -
President 1996 - - - - - -
</TABLE>
See footnotes on the next page.
34
<PAGE>
<TABLE>
<CAPTION>
SCS
SUMMARY COMPENSATION TABLE
(Continued)
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name UnderlyingTerm
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
William L.
Westbrook 1998 290,464 103,288 16,479 11,700 96,743 15,518
Executive Vice 1997 261,020 50,000 9,763 14,242 95,679 15,216
President 1996 251,903 35,426 2,793 12,653 170,096 14,032
Charles D. McCrary 1998 293,816 53,376 955 12,976 164,812 13,590
Executive 1997 224,359 34,000 8,639 10,112 126,075 12,864
Vice President 1996 215,762 29,906 3,198 8,984 126,075 11,530
1 Tax reimbursements by SCS on certain personal benefits.
2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods
ending December 31, 1996, 1997 and 1998. 3 SCS contributions to the ESP, ESOP,
non-pension related accruals under the SBP (ERISA excess plan under which
accruals are made to offset Internal Revenue Code imposed limitations under the
ESP and ESOP), for the following:
ESP ESOP SBP
A. W. Dahlberg $7,200 $1,046 $41,889
Paul J. DeNicola 7,200 1,046 17,096
Stephen Wakefield 2,700 1,046 2,700
William L. Westbrook 6,451 1,046 8,021
Charles D. McCrary 6,300 1,046 6,244
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
Southern LINC
and
Energy Solutions
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name UnderlyingTerm
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)4 (Shares) ($)5 ($)6
- ------------------------------------------------------------------------------------------------------------------------
Southern LINC
<S> <C> <C> <C> <C> <C> <C> <C>
Robert G. Dawson 1998 203,882 186,384 5,710 6,816 94,190 10,721
President, Chief 1997 185,103 138,801 1,199 7,865 - 10,305
Executive Officer, 1996 163,661 116,123 1,185 7,055 - 12,275
Director
R. Craig Elder 1998 123,933 94,933 - 3,354 20,009 6,586
Vice President, 1997 112,606 78,965 304 3,999 - 6,088
Treasurer 1996 106,623 70,640 - - - 5,608
Energy Solutions
J. Kevin Fletcher 1998 146,342 32,245 183 4,444 69,000 7,732
President, 1997 133,797 20,286 - 4,773 60,636 7,556
Director 1996 126,990 17,224 136 4,161 60,636 6,617
Thomas R. Thames 1998 112,018 15,834 - 2,424 38,767 5,711
Vice President, 1997 - - - - - -
General Manager 1996 - - - - - -
4 Tax reimbursement by Energy Solutions and Southern LINC on certain personal benefits.
5 Payouts made in 1997, 1998 and 1999 for the four-year performance periods
ending December 31, 1996, 1997 and 1998. 6 Southern LINC's and Energy Solutions'
contributions to the ESP, ESOP, non-pension related accruals under the SBP
(ERISA excess plan under which accruals are made to offset Internal Revenue Code
imposed limitations under the ESP and ESOP), for the following:
ESP ESOP SBP
Robert G. Dawson $7,200 $1,046 $2,475
R. Craig Elder 5,388 1,046 152
J. Kevin Fletcher 6,350 1,046 336
Thomas R. Thames 4,865 846 -
</TABLE>
36
<PAGE>
<TABLE>
<CAPTION>
Southern Resources
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name UnderlyingTerm
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)7 (Shares) ($) ($)8
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Thomas G. Boren 1998 370,833 425,938 15,162 20,809 - 19,943
President, 1997 345,000 387,625 14,868 18,941 - 19,415
Director 1996 291,086 275,000 13,757 14,250 - 16,293
S. Marce Fuller 1998 275,000 259,000 50,928 11,912 - 15,372
Senior Vice President 1997 244,167 228,125 1,098 13,529 - 11,080
1996 215,000 175,000 1,491 8,881 - 9,403
Raymond D. Hill 1998 275,000 259,000 467,464 11,912 21,970 11,658
Senior Vice President 1997 192,083 228,125 109,479 13,529 - 13,329
1996 190,657 175,000 2,820 8,881 - 9,868
Richard J. Pershing 1998 275,000 259,000 16,159 11,912 - 14,687
Senior Vice President 1997 244,167 228,125 3,645 13,529 - 13,346
1996 190,417 175,000 3,568 8,881 - 9,869
James A. Ward 1998 187,500 140,600 989 6,677 - 10,428
Vice President, 1997 172,500 129,063 4,724 7,824 - 8,790
Controller 1996 - - - - - -
7 Personal benefits provided by Southern Energy including tax reimbursements. In
1997, Mr. Hill's amount included overseas housing costs of $87,762. In 1998, Ms.
Fuller's amount included membership fees of $50,928 and Mr. Hill's amount
included overseas housing costs of $232,385, together with other compensation in
connection with his overseas assignment.
8 Southern Energy contributions to
the ESP, ESOP, non-pension related accruals under the SBP (ERISA excess plan
under which accruals are made to offset Internal Revenue Code imposes
limitations under the ESP and ESOP), for the following:
ESP ESOP SBP
Thomas G. Boren $7,200 $1,046 $11,697
S. Marce Fuller 7,200 1,046 7,123
Raymond D. Hill 7,200 633 3,825
Richard J. Pershing 7,200 1,046 6,441
James A. Ward 7,200 1,046 2,182
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
Southern Nuclear
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION
Number of
Securities Long-
Name Underlying Term
and Other Annual Stock Incentive All Other
Principal Compensation Options Payouts Compensation
Position Year Salary($) Bonus($) ($)9 (Shares) ($)10 ($)11
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
W. G. Hairston, III 1998 358,650 70,001 13,983 14,890 270,495 19,684
President and Chief 1997 323,942 58,903 7,593 17,709 257,040 19,287
Executive Officer 1996 308,789 46,748 3,555 15,583 257,040 17,070
Jack D. Woodard 1998 259,009 55,511 3,156 10,735 132,472 13,756
Executive Vice 1997 233,467 42,848 1,457 10,642 126,075 13,526
President 1996 214,083 38,953 1,903 8,939 126,075 11,675
David N. Morey 1998 185,754 28,675 356 6,202 96,594 9,821
Vice President 1997 166,554 26,053 515 7,514 84,048 9,474
1996 159,410 22,036 574 6,644 84,047 8,500
H. L. Sumner, Jr. 1998 169,794 28,876 1,386 4,897 72,767 1,387
Vice President 1997 146,568 22,248 270 5,933 46,551 1,355
1996 - - - - - -
James B. Beasley, Jr. 1998 155,469 26,878 1,919 3,830 60,495 7,523
Vice President 1997 - - - - - -
1996 - - - - - -
9 Tax reimbursement by Southern Nuclear on certain personal benefits.
10 Payouts made in 1997, 1998 and 1999 for the four-year performance periods
ending December 31, 1996, 1997 and 1998, respectively.
11 Southern Nuclear contributions to the ESP, ESOP, non-pension related
accruals under the SBP (ERISA excess plan under which accruals are made to
offset Internal Revenue Code imposed limitations under the ESP and ESOP),
for the following:
ESP ESOP SBP
William G. Hairston, III $7,200 $1,046 $11,438
Jack D. Woodard 6,796 1,046 5,914
David N. Morey 7,200 1,046 1,575
H. L. Sumner, Jr. - 1,046 341
James B. Beasley, Jr. 5,949 1,046 528
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
STOCK OPTION GRANTS IN 1998
Stock Option Grants. The following table sets forth all stock option
grants to the named executive officers of each operating subsidiary during the
year ending December 31, 1998. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH
are incorporated by reference to page numbers III-19 and III-20 in the SOUTHERN
system's combined Form 10-K for the year ended December 31, 1998. Stock Option
Grants in 1998 for SOUTHERN is incorporated by reference to "Stock Option
Grants" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement
relating to 1999 annual meeting of stockholders.
Individual Grants Grant Date Value
Number of
Securities % of Total
Underlying Options Exercise
Share Granted to or
Options Employees in Base Price Expiration Grant Date
Name Granted12 Fiscal Year13 ($/Sh)14 Date14 Present Value($)14
--------------------------------------------------------------------------------------------------------------
SCS
<S> <C> <C> <C> <C> <C>
A. W. Dahlberg 161,757 10.0 27.03125 07/20/2008 1,429,932
Paul J. DeNicola 24,139 1.0 27.03125 07/20/2008 137,351
Stephen Wakefield 13,614 0.8 27.03125 07/20/2008 77,464
William L. Westbrook 11,700 0.7 27.03125 07/20/2008 66,573
Charles D. McCrary 12,976 0.8 27.03125 07/20/2008 73,833
Southern LINC
Robert G. Dawson 6,816 0.4 27.03125 07/20/2008 38,783
R. Craig Elder 3,354 0.2 27.03125 07/20/2008 19,084
Energy Solutions
J. Kevin Fletcher 4,444 0.3 27.03125 07/20/2008 25,286
Thomas R. Thames 2,424 0.1 27.03125 07/20/2008 13,793
See footnotes on the next page.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
STOCK OPTION GRANTS IN 1998
Individual Grants Grant Date Value
Number of
Securities % of Total
Underlying Options Exercise
Share Granted to or
Options Employees in Base Price Expiration Grant Date
Name Granted12 Fiscal Year13 ($/Sh)14 Date14 Present Value($)14
------------------------------------------------------------------------------------------------------------
Southern Resources
<S> <C> <C> <C> <C> <C>
Thomas G. Boren 20,809 1.2 27.03125 07/20/2008 118,403
S. Marce Fuller 11,912 0.7 27.03125 07/20/2008 67,779
Raymond D. Hill 11,912 0.7 27.03125 07/20/2008 67,779
Richard J. Pershing 11,912 0.7 27.03125 07/20/2008 67,779
James A. Ward 6,677 0.4 27.03125 07/20/2008 37,992
Southern Nuclear
William G. Hairston, III 14,890 0.9 27.03125 07/20/2008 84,724
Jack D. Woodard 10,735 0.7 27.03125 07/20/2008 61,082
David N. Morey 6,202 0.4 27.03125 07/20/2008 35,289
H. L. Sumner, Jr. 4,897 0.3 27.03125 07/20/2008 27,864
James B. Beasley, Jr. 3,830 0.2 27.03125 07/20/2008 21,793
12 Performance Stock Plan grants were made on July 20, 1998, and vest 25% per
year on the anniversary date of the grant. Grants fully vest upon termination
incident to death, disability, or retirement. The exercise price is the average
of the high and low fair market value of SOUTHERN's common stock on the date
granted.
13 A total of 1,659,519 stock options were granted in 1998 to key
executives participating in SOUTHERN's Performance Stock Plan.
14 Based on the
Black-Scholes option valuation model. The actual value, if any, an executive
officer may realize ultimately depends on the market value of SOUTHERN's common
stock at a future date. This valuation is provided pursuant to SEC disclosure
rules. There is no assurance that the value realized will be at or near the
value estimated by the Black-Scholes model. Significant assumptions used to
calculate this value: price volatility - 19.16%; risk-free rate of return -
5.46%; dividend opportunity - 50%, except for Mr. Dahlberg, whose dividend
opportunity - 100%; time to exercise - 10 years; reductions for probability of
forfeiture before vesting - 9.61%; and reductions for probability of forfeiture
before expiration - 15.51% except for Mr. Dahlberg whose reductions for
probability of forfeiture before expiration - 20.20%. These assumptions reflect
the effects of cash dividend equivalents paid to participants under the
Performance Dividend Plan assuming targets are met.
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
AGGREGATED STOCK OPTION EXERCISES IN 1998 AND YEAR-END OPTION VALUES
Aggregated Stock Option Exercises. The following table sets forth
information concerning options exercised during the year ending December 31,
1998 by the named executive officers and value of unexercised options held by
them as of December 31, 1998. ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH
are incorporated by reference to page numbers III-21 and III-22 in the SOUTHERN
system's combined Form 10-K for the year ended December 31, 1998. Aggregated
Stock Option Exercises in 1998 and Year-End Option Values information for
SOUTHERN is incorporated by reference to "Aggregated Stock Option Exercises in
1998 and Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's
definitive Proxy Statement relating to 1999 annual meeting of stockholders.
Value of
Number of Unexercised
Unexercised In-the-Money
Options at Options at
Fiscal Fiscal
Year-End (#) Year-End($)15
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise (#) Realized($)16 Unexercisable Unexercisable
- ---------------------------------------------------------------------------------------------------------------
SCS
<S> <C> <C> <C> <C>
A. W. Dahlberg - - 289,787/354,025 2,572,413/1,690,485
Paul J. DeNicola - - 103,158/66,265 941,519/352,578
Stephen Wakefield - - 2,528/25,667 19,197/119,180
William L. Westbrook - - 32,710/31,960 264,361/169,755
Charles D. McCrary - - 33,080/27,349 284,070/129,924
Southern LINC
Robert G. Dawson - - 10,273/16,243 74,235/81,319
R. Craig Elder - - 999/6,354 7,805/30,250
Energy Solutions
J. Kevin Fletcher - - 6,290/11,111 44,369/83,758
Thomas R. Thames - - 0/2,424 0/4,924
See footnotes on the next page.
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
AGGREGATED STOCK OPTION EXERCISES IN 1998 AND YEAR-END OPTION VALUES
Value of
Number of Unexercised
Unexercised In-the-Money
Options at Options at
Fiscal Fiscal
Year-End (#) Year-End($)15
Shares Acquired Value Exercisable/ Exercisable/
Name on Exercise (#) Realized($)16 Unexercisable Unexercisable
- -----------------------------------------------------------------------------------------------------------------
Southern Resources
<S> <C> <C> <C> <C>
Thomas G. Boren - - 43,633/45,464 361,310/221,170
S. Marce Fuller - - 7,822/26,500 53,339/130,393
Raymond D. Hill - - 7,822/26,500 53,339/130,393
Richard J. Pershing - - 7,822/26,500 53,339/130,393
James A. Ward
Southern Nuclear
William G. Hairston, III - - 49,736/39,911 405,508/210,606
Jack D. Woodard - - 27,870/25,430 225,766/127,947
David N. Morey - - 9,738/16,673 68,563/88,022
H. L. Sumner, Jr. - - 6,711/12,459 47,649/65,037
James B. Beasley, Jr. - - 6,521/10,527 46,053/56,018
15 This represents the excess of the fair market value as of December 31, 1998, of the option shares over exercise price of
the options. One column reports the "value" of options that are vested and therefore could be exercised; the other the
"value" of options that are not vested and therefore could not be exercised as
of December 31, 1998.
16 The "Value Realized" is ordinary income, before taxes, and represents the amount equal to the excess of the fair market
value of the shares or rights at the time of exercise over the exercise price.
</TABLE>
42
<PAGE>
<TABLE>
<CAPTION>
LONG-TERM INCENTIVE PLANS - AWARDS IN 1998
Long-Term Incentive Awards. The following table sets forth the
long-term incentive plan awards made to the named executive officers for the
performance period January 1, 1998 through December 31, 2001. ALABAMA, GEORGIA,
GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers
III-23 and III-24 in the SOUTHERN system's combined Form 10-K for the year ended
December 31, 1998. Long-Term Incentive Plans- Awards information for SOUTHERN is
incorporated by reference to "Aggregated Stock Option Exercises in 1998 and
Year-End Option Values" under ELECTION OF DIRECTORS in SOUTHERN's definitive
Proxy Statement relating to the 1999 annual meeting of stockholders.
Estimated Future Payouts under
Non-Stock Price-Based Plans
Number Performance or
of Other Period
Units Until Maturation Threshold Target Maximum
Name (#)17 or Payout ($)18 ($)18 ($)18
- ----------------------------------------------------------------------------------------------------------------------------------
PRODUCTIVITY IMPROVEMENT PLAN
SCS
<S> <C> <C> <C> <C> <C>
A. W. Dahlberg 510,845 4 years 255,423 510,845 1,021,690
Paul J. DeNicola 282,836 4 years 141,418 282,836 565,672
Stephen Wakefield 161,115 4 years 80,557 161,115 322,229
William L. Westbrook 120,832 4 years 60,416 120,832 241,664
Charles D. McCrary 174,068 4 years 87,034 174,068 348,136
Energy Solutions
J. Kevin Fletcher 46,620 4 years 23,310 46,620 93,240
Thomas R. Thames 32,379 4 years 16,190 32,379 64,758
Southern Nuclear
William G. Hairston, III 182,766 4 years 91,383 182,766 365,532
Jack D. Woodard 89,508 4 years 44,754 89,508 179,017
David N. Morey 65,265 4 years 32,632 65,265 130,530
H. L. Sumner, Jr. 65,265 4 years 32,632 65,265 130,530
James B. Beasley, Jr. 65,265 4 years 32,632 65,265 130,530
</TABLE>
See footnotes on the next page.
43
<PAGE>
<TABLE>
<CAPTION>
LONG-TERM INCENTIVE PLANS - AWARDS IN 1998
Estimated Future Payouts under
Non-Stock Price-Based Plans
Number Performance or
of Other Period
Units Until Maturation Threshold Target Maximum
Name (#)17 or Payout ($)18 ($)18 ($)18
- ----------------------------------------------------------------------------------------------------------------------------------
LONG-TERM INCENTIVE PLAN 19
Southern LINC
<S> <C> <C> <C> <C> <C>
Robert G. Dawson 85,360 3 years 42,680 85,360 256,080
R. Craig Elder 18,133 3 years 9,066 18,133 54,399
VALUE CREATION PLAN 20
Southern Resources
Thomas G. Boren 126,711 4 - 10 years - 243,285 -
S. Marce Fuller 69,713 4 - 10 years - 133,848 -
Raymond D. Hill 69,713 4 - 10 years - 133,848 -
Richard J. Pershing 69,713 4 - 10 years - 133,848 -
James A. Ward (Standard) 30,348 4 - 10 years - 58,268 -
James A. Ward (Indexed) 54,582 4 - 10 years - - -
17 A performance unit is a method of assigning a dollar value to a
performance award opportunity. Under the Executive Productivity
Improvement Plan of the Company (the "plan"), the number of units granted to
named executive officers (except Mr. Boren who does not participate in the plan)
is 50 to 65 percent of their base salary range midpoint
at the beginning of the performance period, with
each unit valued at $1.00. No awards are paid unless the participant remains
employed by the Company through the end of the performance period.
18 The threshold, target, and maximum value of a unit under the plan is $0.50,
$1.00 and $2.00, respectively, and can vary based on the Company's return on
common equity and total shareholder return relative to selected groups of
electric and gas utilities. If certain minimum performance relative to the
selected groups is not achieved, there will be no payout; nor is there a payout
if the current earnings of the Company are not sufficient to fund the dividend
rate paid in the last calendar year. The plan provides that in the discretion
of the committee extraordinary income may be excluded for purposes of
calculating the amount available for the payment of awards. All awards are
payable in cash at the end of the performance period.
The threshold, target and maximum value of a unit under Southern LINC's
Long-Term Incentive Plan is 50%, 100% and 300%, respectively.
The target value of a unit under the Southern Energy, Inc. Value Creation
Plan is not determinable. The actual value, if any, a participant may realize
ultimately depends on the value of Southern Energy, Inc. at a future date. As of
December 31, 1998, each unit of phantom interest in Southern Energy, Inc. had a
value of $11.65. Based on the 1998 performance, the rights awarded to Messrs.
Boren, Hill, Pershing, Ward and Ms. Fuller would have values of $243,285,
$133,848, $133,848, $58,268 and $133,848, respectively.
19 Under Southern LINC's Long-Term Incentive Plan, annual target awards range
from 5 to 40 percent of base salary as of the end of the plan period, depending
upon the grade of the participant at the beginning of the performance period.
Performance is measured based on Southern LINC's net income. Incentives are
earned based on the achievement of the overlapping three-year net income targets.
20 The Compensation & Management Succession Committee awarded Messrs.
Boren, Hill, Pershing, Ward and Ms. Fuller 126,711 rights,
69,713 rights, 69,713 rights, 84,930 rights and 69,713 rights, respectively,
to the appreciation in the value of Southern Energy, Inc. over a term of
ten years from March 15, 1998, under the Southern Energy, Inc. Value
Creation Plan. Each unit of phantom interest in Southern Energy, Inc. had an
initial value and exercise price of $9.73. Standard appreciation rights vest
annually at a rate of 25 percent on the anniversary date of the grant and
indexed appreciation rights vest on the fourth anniversary of the grant.
</TABLE>
44
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
(b) Stock Ownership. The following tables show the number of shares of
SOUTHERN common stock and preferred stock owned by the directors, nominees and
executive officers as of December 31, 1998. It is based on information furnished
to SOUTHERN by the directors, nominees and executive officers. The shares owned
by all directors, nominees and executive officers of each company as a group
constitute less than one percent of the total number of shares of the respective
classes outstanding on December 31, 1998. SOUTHERN is incorporated by reference
to "Stock Ownership" under ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy
Statement relating to the 1999 annual meeting of stockholders. ALABAMA, GEORGIA,
GULF, MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers
III-31 through III-36 in the SOUTHERN system's combined Form 10-K for the year
ended December 31, 1998.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned(1)(2)
- ------------------ -------------- ------------------
SCS
A. W. Dahlberg SOUTHERN Common 355,291
Paul J. DeNicola SOUTHERN Common 139,642
H. Allen Franklin SOUTHERN Common 177,239
Elmer B. Harris SOUTHERN Common 222,887
Stephen Wakefield SOUTHERN Common 16,235
William L. Westbrook SOUTHERN Common 97,558
Charles D. McCrary SOUTHERNCommon 39,957
The directors, nominees
and executive officers
of SCS as a Group SOUTHERN Common 1,121,447 shares
SEGCO
Robert L. Boyer SOUTHERN Common 52,004
H. Allen Franklin SOUTHERN Common 177,239
Elmer B. Harris SOUTHERN Common 222,887
Robert H. Haubein, Jr. SOUTHERN Common 29,002
William B. Hutchins, III SOUTHERN Common 48,307
45
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned(1)(2)
- ------------------ -------------- ------------------
SEGCO (continued)
Charles D. McCrary SOUTHERN Common 39,957
Earl B. Parsons, Jr. SOUTHERN Common 10,896
David M. Ratcliffe SOUTHERN Common 79,206
The directors, nominees
and executive officers
of SEGCO as a Group SOUTHERN Common 667,586 shares
Southern LINC
A. W. Dahlberg SOUTHERN Common 355,291
Robert G. Dawson SOUTHERN Common 32,517
Paul J. DeNicola SOUTHERN Common 139,642
H. Allen Franklin SOUTHERN Common 177,239
Elmer B. Harris SOUTHERN Common 222,887
W. L. Westbrook SOUTHERN Common 97,558
R. Craig Elder SOUTHERN Common 6,171
The directors, nominees
and executive officers
of Southern LINC
as a Group SOUTHERN Common 1,031,306 shares
46
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned (1)(2)
- ------------------ -------------- ------------------
Energy Solutions
Robert S. Beason SOUTHERN Common 10,743
J. Kevin Fletcher SOUTHERN Common 14,878
C. Alan Martin SOUTHERN Common 3,803
Michael L. Scott SOUTHERN Common 11,865
Bertram Sears SOUTHERN Common 2,122
J. Thomas Kilgore SOUTHERN Common 9,153
Allen Leverett SOUTHERN Common 6,324
William T. Orr SOUTHERN Common 209
Thomas R. Thames SOUTHERNCommon 1,712
The directors, nominees
and executive officers
of Energy Solutions
as a Group SOUTHERN Common 60,811 shares
Southern Resources
Thomas G. Boren SOUTHERN Common 57,732
A. W. Dahlberg SOUTHERN Common 355,291
Paul J. DeNicola SOUTHERN Common 139,642
H. Allen Franklin SOUTHERN Common 177,239
W. L. Westbrook SOUTHERN Common 97,558
S. Marce Fuller SOUTHERN Common 11,538
Raymond D. Hill SOUTHERN Common 9,700
47
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
Name of Directors
or Nominees and Number of Shares
Executive Officers Title of Class Beneficially Owned(1)(2)
- ------------------ -------------- ------------------
Southern Resources (continued)
Richard J. Pershing SOUTHERN Common 30,642
James A. Ward SOUTHERN Commons 11,756
The directors, nominees
and executive officers
of Southern Resources as a Group SOUTHERN Common 1,250,094 shares
Southern Nuclear
A. W. Dahlberg SOUTHERN Common 355,291
Paul J. DeNicola SOUTHERN Common 139,642
H. Allen Franklin SOUTHERN Common 177,239
William G. Hairston, III SOUTHERN Common 70,217
Elmer B. Harris SOUTHERN Common 222,887
James B. Beasley, Jr. SOUTHERN Common 20,843
David N. Morey SOUTHERN Common 27,316
H. L. Sumner, Jr. SOUTHERN Common 9,103
Jack D. Woodard SOUTHERN Common 54,684
The directors, nominees
and executive officers of
Southern Nuclear
as a Group SOUTHERN Common 1,077,222 shares
Notes to Item 6, Part III(b):
(1) As used in these tables, "beneficial ownership" means the sole or shared
power to vote, or to direct the voting of, a security and/or investment
power with respect to a security (i.e., the power to dispose of, or to
direct the disposition of, a security).
(2) The shares shown include shares of common stock of which certain directors
and officers have the right to acquire beneficial ownership within 60 days
pursuant to the Executive Stock Option Plan, as follows: Mr. Beasley,
6,521 shares; Mr. Beason,
2,626 shares; Mr. Boren, 43,633 shares; Mr. Boyer, 9,134 shares; Mr.
Dahlberg, 289,787 shares; Mr. Dawson, 10,273 shares; Mr. DeNicola, 103,158
shares; Mr. Elder, 999 shares; Mr. Fletcher, 6,290 shares; Mr. Franklin,
149,760 shares; Mr. Fuller, 7,822 shares; Mr. Hairston, 49,736 shares; Mr.
Harris, 183,510 shares; Mr. Haubein, 26,696 shares; Mr. Hill, 7,822
shares; Mr. Hutchins, 32,521 shares; Mr. Kilgore, 4,454 shares; Mr.
Leverett, 4,144 shares; Mr. Martin, 2,018 shares; Mr. McCrary, 33,080
shares; Mr. Morey, 9,738 shares; Mr. Parsons, 6,188 shares; Mr. Pershing,
7,822 shares; Mr. Ratcliffe, 69,668 shares; Mr. Scott, 7,684 shares; Mr.
Sears, 691 shares; Mr. Sumner, 6,711 shares; Mr. Wakefield, 2,528 shares;
Mr. Ward, 4,727 shares; Mr. Westbrook, 32,710 shares; and Mr. Woodard,
27,870 shares. Also included are shares of SOUTHERN common stock held by
the spouse of Mr. Harris, 310 shares.
48
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS.
PART III.
(c) Contracts and transactions with system companies.
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are incorporated by
reference to page numbers III-37 and III-38 in the SOUTHERN system's
combined Form 10-K for the year ended December 31, 1998.
(d) Indebtedness to system companies.
None.
(e) Participation in bonus and profit sharing arrangements and other
benefits.
SOUTHERN is incorporated by reference to "Executive Compensation" under
ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating
to the 1999 annual meeting of stockholders. Also, ALABAMA, GEORGIA, GULF,
MISSISSIPPI and SAVANNAH are incorporated by reference to page numbers
III-29 and III-30 in the SOUTHERN system's combined Form 10-K for the
year ended December 31, 1998.
SOUTHERN's Change in Control Plan is applicable to certain of its
officers, and individual change in control agreements have been entered
into with some of the most highly compensated executive officers of SCS,
SEGCO, Southern LINC, Southern Nuclear and Southern Resources. If an
executive is involuntarily terminated, other than for cause, within
two years followinga change in control of SOUTHERN the agreements
provide for:
o lump sum payment of two or three times annual compensation,
o up to five years' coverage under group health and life insurance plans,
o immediate vesting of all stock options and stock appreciation rights
previously granted,
o payment of any accrued long-term and short-term bonuses and dividend
equivalents, and
o payment of any excise tax liability incurred as a result of payments made
under the agreement.
A change in control is defined under the agreements as:
o acquisition of at least 20 percent of the SOUTHERN's stock,
o a change in the majority of the members of the SOUTHERN's board of directors,
o a merger or other business combination that results in SOUTHERN's
shareholders immediately before the merger owning less than 65 percent of the
voting power after the merger, or
o a sale of substantially all the assets of SOUTHERN.
If a change in control affects only a subsidiary of SOUTHERN, these
payments would only be made to executives of the affected subsidiary who
are involuntarily terminated as a result of that change in control.
SOUTHERN also has amended its short- and long-term incentive plans to
provide for pro-rata payments at not less than target-level performance if
a change in control occurs and the plans are not continued or replaced
with comparable plans.
(f) Rights to indemnity.
Incorporated by reference are the by-laws, for the companies of the
SOUTHERN system, contained herein as Exhibits.
49
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS.
(1) Expenditures, disbursements or payments, directly or indirectly, in
money, goods or services, to or for the account of any political party,
candidate for public office or holder of such office, or any committee or agent
thereof.
<TABLE>
<CAPTION>
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C>
None
</TABLE>
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH have established
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 and the Public Utility Holding Company Act.
(2) Expenditures, disbursements or payments, directly or indirectly, in
money, goods or services, to or for the account of any citizens group
or public relations counsel.
The information called for by this item was compiled, and memoranda
from each company in the system were received and are being preserved by
SOUTHERN, in accordance with the instructions to this item.
<TABLE>
<CAPTION>
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
SOUTHERN Bahamas National Trust Support 426 5,930
Carl E. Sanders YMCA Support 426 25,000
Centennial Olympic Park Support 426 50,000
Chattahoochee Nature Center Support 426 1,000
Corporate Partners in Conservation Support 426 2,000
East Lake Community Foundation Support 426 50,000
Edison Electric Institute Support 426 575,000
Emissions Marketing Association Support 426 5,000
Friends of John A. White Park Support 426 50,000
Georgia State University Support 426 100,000
Nature Conservancy Support 426 15,000
North Carolina American Fisheries Society Support 426 2,000
Resource for the Future Support 426 25,000
Southern Environmental Center Support 426 12,500
The Carter Center Support 426 80,000
ALABAMA Business Council of Alabama Dues & Support 930,426,793 520,855
Cahaba River Society Support 793,426 3,060
Edison Electric Institute Dues 930,426,921 530,432
National Association of Manufacturers Dues 426 15,000
Nature Conservancy Dues 426 10,000
Nature Conservancy of Alabama Support 426 1,000
Nuclear Energy Institute Dues 524,426 324,530
Public Affairs Research Council of Alabama Dues & Support 426 10,320
</TABLE>
50
<PAGE>
<TABLE>
<CAPTION>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS. (Continued)
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
GEORGIA Buckhead Coalition Dues 930 5,000
Central Atlanta Progress Dues 930 26,250
Clean Cities Atlanta Dues 930 5,000
Edison Electric Institute Dues 426,930 735,876
Georgia Conservancy Support 426 6,000
Georgia Council on Economic Education Dues n/a 20,000 *
Nature Conservancy Support 426 27,500
n/a 30,000 *
Nuclear Energy Institute Dues 524,426 409,019 **
Regional Business Coalition Dues 930 6,000
Southern Coalition Dues 930 3,500
* Georgia Power Foundation.
** Excludes dues billed to joint owners of Plants Hatch and Vogtle.
GULF Associated Industries of Florida Dues 930 7,000
Century Chamber of Commerce Support 912 10,250
Economic Development Council -
Okaloosa County Dues & Support 912 11,050
Economic Development Council -
Walton County Support 912 15,000
Enterprise Florida Support 912 25,500
Florida Chamber of Commerce Dues & Support 912 13,000
Florida Chanber of Commerce
Foundation, Inc. Dues 912 10,000
Florida Public Relations Association Dues 921 885
Florida State Society of Washington, D.C. Dues 426 300
Florida Tax Watch, Inc. Dues 426 5,000
Foundation for the Future Support 912 50,000
Haas Center - University of West Florida Support 912 14,000
Northwest Florida Regional Economic
Development Coalition Support 912 96,665
T.E.A.M. Santa Rosa - Council of
Economic Activity Dues & Support 912 11,000
Washington County Chamber of Commerce Support 912 11,000
Other Economic Development Councils/
Activity Groups (9 Beneficiaries) Dues & Support 426,912,930 15,325
</TABLE>
51
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS. (Continued)
<TABLE>
<CAPTION>
Accounts Charged,
if any, per Books
of Disbursing
Name of Company Name of Recipient or Beneficiary Purpose Company Amount($)
- --------------- -------------------------------- ------- ------- ---------
<S> <C> <C> <C> <C>
MISSISSIPPI Area Development Partnership Dues 930 6,350
Business and Industry Political
Education Committee Dues 930 1,750
Coastal Conservation Association of
Mississippi Dues 930 2,000
East Mississippi Business Development
Corporation Dues 930 10,000
Economic Development Authority of
Jones County Dues 930 2,750
Edison Electric Institute Dues 930 56,420
Jackson County Economic Development Dues 930 3,000
Mississippi Manufacturers Association Dues 930 1,425
Mississippi Nature Conservancy Dues 930 5,000
Retail Association of Mississippi Dues 930 1,600
Southern Electric Exchange, Inc. Dues 930 8,614
Southeastern Electric Reliability Council Dues 930 8,404
SAVANNAH American Economic Development Council Dues 930 305
Association County Commissioners
of Georgia Dues 930 500
Economic Opportunity Authority Support 426 100
Edison Electric Institute Dues 426,930 47,356
Georgia Council on Economic Education Membership 426 2,000
Georgia Economic Developers Association Dues 930 600
Georgia Municipal Association Dues 930 500
Nature Conservancy Support 426 5,000
National Association of Manufacturers Membership 930 1,500
National Council for Urban Economic
Development Dues 930 620
Southern Economic Development
Council Dues 930 150
Southeast Electrification Council Membership 930 1,600
Tourism Leadership Council Membership 930 500
Utilities State Government Organization Membership 426 150
</TABLE>
52
<PAGE>
<TABLE>
<CAPTION>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS.
PART I.
In Effect
on Dec. 31
Transactions Serving Company Receiving Company Compensation Contract (Yes or No)
(1) (2) (3) (4) (5) (6)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
(Note) (Note) SEI (Note) (Note) Yes
(Note) (Note) Southern LINC (Note) (Note) Yes
(Note) (Note) Energy Solutions (Note) (Note) Yes
Sublease of railcars MISSISSIPPI ALABAMA $382,190 Yes
Sublease of railcars MISSISSIPPI GEORGIA $192,167 Yes
Sublease of railcars SAVANNAH ALABAMA $5,561 Yes
Sublease of railcars SAVANNAH GEORGIA $376,938 Yes
</TABLE>
Note:
Southern Resources, Southern LINC, and Energy Solutions have agreements with
SCS, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH pursuant to which Southern
Resources, Southern LINC and Energy Solutions reimburse each of such companies
for the full cost of services, personnel and facilities provided to Southern
Resources, Southern LINC and Energy Solutions.
Pursuant to such agreements, during 1998 the total reimbursements to SCS,
ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH from Southern Resources were
$15,438,948; $108,623; $929,882; $0; $0; and $0, respectively; from Southern
LINC were $32,866,933; $921,517; $5,748,028; $176,913; $2,258,669; and $28,001,
respectively; and from Energy Solutions were $15,296,880; $1,207,380;
$1,173,330; $93,100; and $910, respectively.
Part II.
None.
Part III.
None.
53
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES.
Part I(a)
<TABLE>
<CAPTION>
Key terms: FUCO means Foreign Utility Company FUCO-S means a subsidiary of a FUCO
EWG means Exempt Wholesale Generator IS means Intermediate Subsidiary
PP means Project Parent SPS means Special Purpose Subsidiary
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, IS TRANSMISSION,
DISTRIBUTION
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
GEN TRAN DIST
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
<S> <C> <C> <C> <C> <C> <C>
1. Southern Electric Bahamas IS N/A N/A N/A Southern 100%
Holdings, Ltd. Energy-Newco2,
900 Ashwood Parkway, Suite 500 Inc.
Atlanta, GA 30338
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
2. Southern Electric Bahamas, Ltd. IS N/A N/A N/A Southern Electric 100%
900 Ashwood Parkway, Suite 500 Bahamas
Atlanta, GA 30338 Holdings, Ltd.
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
3. ICD Utilities Limited IS N/A N/A N/A Southern Electric 25%
P.O. Box F-42666 Bahamas, Ltd.
Freeport, Grand Bahamas, Bahamas Foreign Company 75%
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
4. Freeport Power Company, Ltd. FUCO Note Note Note Southern Electric 62.5%
Freeport, Grand Bahamas, Bahamas (1) (2) (3) Bahamas, Ltd.
Port Authority Building Third Party 37.5%
P.O. Box F-40888
Freeport, Grand Bahamas, Bahamas
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
5. SEI Operadora de Argentina, S.A. FUCO N/A N/A N/A Southern Energy 99.99%
Buenos Aires, Argentina Resources, Inc.
LN Alem 712 - Piso 7 Southern Energy, .01%
(1001) Buenos Aires, Argentina Inc.
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
6. Southern Electric International Asia, Inc. SPS N/A N/A N/A Southern Energy 100%
18/F Hong Kong Telecom Tower, Resources Inc.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
7. Southern Electric International GmbH, Inc. SPS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Resources Inc.
Atlanta, GA 30338
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
8. Southern Energy Inc. (formerly known as IS N/A N/A N/A The Southern Co. 100%
SEI Holdings, Inc.)
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
9. Asociados de Electricidad, S.A. IS N/A N/A N/A Southern Energy, 100%
Buenos Aires, Argentina Inc.
LN Alem 712 - Piso 7
(1001) Buenos Aires, Argentina
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
</TABLE>
54
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, IS TRANSMISSION,
DISTRIBUTION
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
GEN TRAN DIST
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
<S> <C> <C> <C> <C> <C> <C>
10. SEI y Asociados de Argentina, S.A. IS N/A N/A N/A Southern Energy, 40.52%
Buenos Aires, Argentina Inc.
LN Alem 712 - Piso 7 SEI Worldwide 45.79
(1001) Buenos Aires, Argentina Holdings GmbH
Asociados de 1.0%
Electricidad, 5.55%
S.A.
Third Party
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
11. Hidroelectrica Alicura, S.A. FUCO Note N/A N/A SEI y Asociados 59%
Buenos Aires, Argentina (1) de
LN Alem 712 - Piso 7 Argentina, S.A. 41%
(1001) Buenos Aires, Argentina Third Party
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
12. Southern Energy Resources, Inc. (formerly IS N/A N/A N/A Southern Energy, 100%
known as Southern Energy, Inc.) Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
13. SEI Chile, S.A. IS N/A N/A N/A Southern 100%
Apoquindo 3721 Energy-Newco2,
Oficina 114 Inc.
Edificio "Torre Las Condes"
Las Condes, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
14. Inversiones SEI Chile Limitada IS N/A N/A N/A SEI Chile, S.A. 99%
Apoquindo 3721 Southern Energy, 1%
Oficina 114 Inc.
Edificio "Torre Las Condes"
Las Condes, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
15. Electrica SEI Chile Limitada (Inactive) IS N/A N/A N/A SEI Chile, S.A. 97.05%
Apoquindo 3721 Southern Energy,
Oficina 114 Inc 1%
Edificio "Torre Las Condes"
Las Condes, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
16. Empresa Electrica del Norte Grande, S.A. FUCO Note Note N/A SEI Chile, SA 82.34%
Antofagasta, Chile (3) (2) Third Party 8.85%
Avenida Grecia 750
Casilla 1290
Antofagasta, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
17. Sitranor S. A. SUB N/A N/A N/A Empressa 60%
Antofagasta, Chile OF Electric a del
Avenida Grecia 750 FUCO Norte Grande, SA
Casilla 1290 Third Party 40%
Antofagasta, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
17a. Gasoducto Nor Andino Argentina, S.A. IS N/A N/A N/A Tractebel 66.67%
Energia del 33.33%
Limitada
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
17b.Gasoducto Nor Andino S.A IS N/A N/A N/A Tractebel 66.67%
Energia del 33.33%
Limitada
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
</TABLE>
55
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, IS TRANSMISSION,
DISTRIBUTION
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
GEN TRAN DIST
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
<S> <C> <C> <C> <C> <C> <C>
18. Energia del Pacifico IS N/A N/A N/A Edelnor 99%
Apoquindo 3721, Oficina 114 S.E. Chile 1%
Edificio, Las Condes, Santiago, Chile
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
19. Energia de Nuevo Leon, SA De CV FUCO N/A N/A N/A The Southern 33.33%
900 Ashwood Parkway, Suite 500 Company
Atlanta, GA 30338 Foreign Corp. 33.33%
Foreign Govt. 33.33%
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
20. Southern Electric International, Europe Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 International,
Atlanta, GA 30338 Inc.
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
21. Southern Electric International, Inc. IS N/A N/A N/A Southern Energy,
900 Ashwood Parkway, Suite 500 Inc. 100%
Atlanta, GA 30338
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
22. Southern Investment UK, plc IS N/A N/A N/A SWEB Holdings 100%
31 Curzon Street Limited
London, WIY 7AE
England
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
23. South Western Electricity, plc FUCO Note N/A Note Southern 100%
800 Park Avenue (1) (3) Investment UK,
Aztec West plc
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
24. Electricity Association Limited FUCO SUB N/A N/A N/A South Western 5.9%
800 Park Avenue Electricity, plc
Aztec West Third Party 94.1%
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
25. SWEB Finance Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
26. Electricity Association Technology Limited SUB N/A N/A N/A South Western 7.7%
Capenhurst OF Electricity, plc 92.3%
Chester CH1 6ES FUCO Third Party
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
27. SWEB Telecom Limited (Inactive) SUB N/A N/A N/A South Western 100%
800 Park Avenue OF Electricity, plc
Aztec West FUCO
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
28. SWEB Gas Limited (Inactive) SUB N/A N/A N/A South Western 100%
800 Park Avenue OF Electricity, plc
Aztec West FUCO
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
29. South Western Energy Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
</TABLE>
56
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, IS TRANSMISSION,
DISTRIBUTION
- --------------------------------------------------- ----------- ---------------------------------- ------------------ ------------
GEN TRAN DIST
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
<S> <C> <C> <C> <C> <C> <C>
30. SWEB Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- -------------- --------- --------- ------------------ ------------
31. SWEB Natural Gas Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
32. South Western Natural Gas Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
33.Western Natural Gas Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
34. SWEB Retail Limited (Inactive) FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
35. Electricity Pensions Limited FUCO SUB N/A N/A N/A South Western 0%
110 Buckingham Palace Road Electricity, plc Note (4)
London SW1 W9SL
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
36. Electricity Pensions Trustee Limited FUCO SUB N/A N/A N/A South Western 5%
110 Buckingham Palace Road Electricity, plc
London SW1 W9SL Third Party 95%
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
37. ESN Holdings Limited FUCO SUB N/A N/A N/A South Western 4.5%
800 Park Avenue Electricity, plc
Aztec West Third Party 95.5%
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
38. REC Collect Limited FUCO SUB N/A N/A N/A South Western 25.0%
800 Park Avenue Electricity, plc
Aztec West Third Party 75.0%
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
39. South Western Power Limited FUCO SUB Note N/A N/A South Western 100%
800 Park Avenue (1) Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
40. South Western Power Investments Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Power Limited
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ----------- ------------- ---------- --------- ------------------ ------------
</TABLE>
57
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
41. Non-Fossil Purchasing Agency Limited FUCO SUB N/A N/A N/A South Western 8.3%
Bamburgh House Electricity, plc
Market Street Third Party 91.7%
Newcastle-upon-Tyne NE1 6BH
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
42. Winterton Power Limited FUCO SUB Note N/A N/A South Western 25.0%
800 Park Avenue (1) Power Investments
Aztec West Limited
Almondsbury, Bristol BS12 4SE Third Party 75.0%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
43. Teeside Power Limited FUCO SUB Note N/A N/A South Western 7.7%
4 Millbank (1) Power Investments
Westminster Limited
London SW1P 3ET Third Party 92.3%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
44. Wind Resources Limited FUCO SUB N/A N/A N/A South Western 45.0%
800 Park Avenue Power Investments
Aztec West Limited
Almondsbury, Bristol BS12 4SE Third Party 55.0%
- ---------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
45. Coal Clough Limited FUCO SUB Note N/A N/A Wind Resources 100%
800 Park Avenue (1) Limited
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
46. Carland Cross Limited FUCO SUB Note N/A N/A Wind Resources 100%
800 Park Avenue (1) Limited
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
47. SWEB Property Investments Ltd. FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
48. SWEB Property Developments Ltd. FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
49. Temple Back Developments Ltd. FUCO SUB N/A N/A N/A SWEB Property 49.0%
800 Park Avenue Developments Ltd.
Aztec West Third Party
Almondsbury, Bristol BS12 4SE 51.0%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
50. Weston Super Mare Developments Limited FUCO SUB N/A N/A N/A Temple Back 100%
800 Park Avenue Developments, Ltd.
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
</TABLE>
58
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
51. SWEB Investments Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
52. South West Enterprise Limited FUCO SUB N/A N/A N/A South Western 0%
800 Park Avenue Electricity, plc Note (4)
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
53. Croeso Systems Development Ltd. FUCO SUB N/A N/A N/A SWEB Investments 50.0%
Newport Road 1996 Limited
St Mellons Third Party
Cardiff CF3 9XW 50.0%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
54. Midlands Enterprises Fund FUCO N/A N/A N/A SWEB Investments 26.80%
Newport Road SUB 1996 Limited
St Mellons
Cardiff CF3 9XW
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
55.Wind Electric Limited FUCO SUB N/A N/A N/A South Western 11.7%
Deli Power Investments
Delabole Limited
Cornwall PL33 9BZ Third Party 88.3%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
56.St. Clements Services Limited FUCO SUB N/A N/A N/A South Western 9.1%
210 High Holborn Electricity, plc
London WC1V 7BW Third Party 90.9%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
57.SWEB Data Collection Services Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
58.SWEB Investments 1996 Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
59.UK Data Collections Services Limited FUCO SUB N/A N/A N/A South Western 8.3%
Chesterton House Electricity, plc
352 Avebury Boulevard Third Party 91.7%
Central Milton Keynes MK9 2JH
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
60. South Western Helicopters Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
</TABLE>
59
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
61. Concorde House Limited FUCO SUB N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
62.SWEB Insurance Limited FUCO N/A N/A N/A South Western 100%
Dixcart House, Sir William Place SUB Electricity, plc
St. Peter Port, Guernsey
Channel Islands GY 1 4NB
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
63. AZTEC Insurance Ltd. FUCO SUB N/A N/A N/A South Western 100%
Dixcart House, Sir William Place Electricity, plc
St Peter Port, Guernsey
Channel Islands GY1 4NB
- ---------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
64. SWEB Pension Trustee Limited IS N/A N/A N/A South Western 100%
800 Park Avenue Electricity, plc
Aztec West
Almondsbury, Bristol BS12 4SE
- -------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
65. South Western Electricity Share Scheme FUCO SUB N/A N/A N/A South Western 100%
Trustees Limited (Inactive) Electricity, plc
800 Park Avenue
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
66.Electralink Limited FUCO SUB N/A N/A N/A South Western 6.19%
Templar House Electricity, plc
81-87 High Holborn Third parties 93.81%
London WC1V 6NU
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
67.Northmere Limited FUCO SUB N/A N/A N/A South Western 0%
30 Millbank Electricity plc
London SW1P 4RD + Others
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
68.Green Electron Limited FUCO SUB N/A N/A N/A South Western 90%
30 Millbank Electricity plc
London SW1P 4RD Foreign Corp 10%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
69. Southern Electric International -Netherlands IS N/A N/A N/A Southern Energy 100%
B.V. (formerly Tesro Holding, B.V.) International -
Amsterdam, The Netherlands Europe, Inc.
Hoekenrode 6-8
1102 BR Amsterdam
The Netherlands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
</TABLE>
60
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------- -------- -------------------------- ------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
GEN TRAN DIST
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
70.Southern Energy UK Generation Limited IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Europe, Inc.
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
71.Southern Energy Development - Europe Limited IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Europe, Inc.
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
72. Southern Electric, Inc. EWG N/A N/A N/A Southern Energy, 100%
900 Ashwood Parkway, Suite 500 Inc.
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
73. SEI Beteilligungs, GmbH IS N/A N/A N/A Southern
900 Ashwood Parkway, Suite 500 EnergyNewco2, Inc. 100%
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
74. P.T. Tarahan Power Company SPS N/A N/A N/A SEI 55%
JL.H.R. Rasuna Said Kav B-1 Beteilligungs,
Gedung Wisma Bakrie Setiabudi GmbH
Jakarta, Selatan 12920 Third Party 42.5%
Foreign Domes. 2.5%
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
75. Southern Electric International Trinidad, Inc. EWG N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 International,
Atlanta, GA 30338 Inc.
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
76. The Power Generation Company of EWG Note N/A N/A Southern Electric 39%
Trinidad & Tobago, Limited (1) International
6A Queens Park West Trinidad, Inc.
Port of Spain, Trinidad, West Indies Domestic Corp 10%
Foreign Govt. 51%
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
77. Southern Electric do Brasil Participacoes, IS N/A N/A N/A Cayman Energy 90.6%
Limitada Traders
900 Ashwood Parkway, Suite 500 Foreign Pension 9.4%
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
78. Southern Energy North America, Inc. IS N/A N/A N/A Southern Energy, 100%
(formerly Southern Electric Wholesale Inc.
Generators, Inc.)
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
79. Southern Energy Trading and Marketing, IS N/A N/A N/A Southern Energy 100%
Inc. (formerly Southern Energy Marketing Inc.) Ventures, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
80. SC Energy Ventures, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Trading and
Atlanta, GA 30338 Marketing, Inc.
- --------------------------------------------------------- -------- -------- -------- -------- ------------------- ------------
</TABLE>
61
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
81. Southern Company Energy Marketing L.P. IS N/A N/A N/A SC Energy 59.4%
900 Ashwood Parkway, Suite 500 Ventures, Inc.
Atlanta, GA 30338 Southern Company 1%
Energy Marketing
G.P., L.L.C
Domestic
Corporation 39.6%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
82. Southern Company Retail Energy Marketing L.P. IS N/A N/A N/A Southern Company 99%
900 Ashwood Parkway, Suite 500 Energy Marketing
Atlanta, GA 30338 L.P.,
Southern Company 1%
Energy Marketing
G.P. L.L.C.
- ---------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
83. Southern Energy Retail Trading and Marketing, IS N/A N/A N/A Southern Energy 100%
Inc. Trading and
900 Ashwood Parkway, Suite 500 Marketing, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
84. SC Ashwood Holdings, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Trading and
Atlanta, GA 30338 Marketing, Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
85. Southern Company Energy Marketing L.P., IS N/A N/A N/A SC Ashwood 60%
L.L.C. Holdings, Inc.
900 Ashwood Parkway, Suite 500 Domestic 40%
Atlanta, GA 30338 Corporation
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
86. SEI Birchwood, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 North America Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
87. Greenhost, Inc. EWG N/A N/A N/A SEI Birchwood, Inc. 50%
900 Ashwood Parkway, Suite 500 Domestic
Atlanta, GA 30338 Corporation 50%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
88. Birchwood Power Partners, L.P. EWG Note N/A N/A SEI Birchwood, Inc. 50%
900 Ashwood Parkway, Suite 500 (1) Third Party
Atlanta, GA 30338 50%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- -----------
62
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
89. SEI Hawaiian Cogenerators, Inc. EWG N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 North America, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
90. Southern Energy - Cajun, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 North America, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
91.Louisiana Generating, LLC IS N/A N/A N/A Southern 40%
900 Ashwood Parkway, Suite 500 Energy-Cajun, Inc.
Atlanta, GA 30338 Third Party 60%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
92. SEI State Line, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 North America, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
93. State Line Holding Corporation IS N/A N/A N/A SEI State Line, 100%
900 Ashwood Parkway, Suite 500 Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
94. State Line Energy, L.L.C. EWG N/A N/A N/A SEI State Line, 60%
900 Ashwood Parkway, Suite 500 Inc.
Atlanta, GA 30338 State Line Holding 40%
Corporation
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
95. Southern Energy International, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
96. Southern Energy do Brazil Ltda. SPS N/A N/A N/A Southern Energy 99.85%
900 Ashwood Parkway, Suite 500 International, Inc.
Atlanta, GA 30338 Southern Energy .15%
Resources, Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
97. Southern Energy-Newco2, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 International, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
98. Southern Energy- Asia, Inc. IS N/A N/A N/A Southern Energy 100%
Suite 1401, Two Exchange Square International, Inc.
8 Connaught Place
Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
99.Consolidated Electric Power Asia Limited SPS N/A N/A N/A Southern Energy 90%
18/F Hong Kong Telecom Tower, Asia, Inc.
Taikoo Place, 979 King's Road Foreign Corp 10%
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
63
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
100.Allied Queensland Coalfields, Ltd SPS* N/A N/A N/A CEPA Fuels Ltd. 95.17%
18/F Hong Kong Telecom Tower, Marsford
Taikoo Place, 979 King's Road Investments Ptd.
Quarry Bay, Hong Kong Ltd. 4.83%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
101.Aberdare Collieries Pty Limited SPS N/A N/A N/A Allied Queensland 100%
18/F Hong Kong Telecom Tower, Coalfield Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
102.AQC (Wilkie Creek) Pty Ltd. SPS N/A N/A N/A AQC (Kogan Creek) 100%
18/F Hong Kong Telecom Tower, Pty Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
103.AQC (Kogan Creek) Pty Limited SPS N/A N/A N/A Allied Queensland 100%
18/F Hong Kong Telecom Tower, Coalfields Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
104.Baralaba Coal Pty Limited SPS N/A N/A N/A Allied Queensland 100%
18/F Hong Kong Telecom Tower, Coalfields Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
105.CEPA Power China (BVI) Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
106.CEPA Energy (BVI) Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
107.CEPA Project Management (BVI) Company Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
108.CEPA Energy International (BVI) Limited SPS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
* Special Purpose Subsidiary
</TABLE>
64
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------- ---------- -------------------------------- -------------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
GEN TRAN DIST
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
<S> <C> <C> <C> <C> <C> <C>
109.CEPA Slipform Power Systems (BVI) IS N/A N/A N/A Consolidated Electric 100%
Limited Power Asia Limited
18/F Hong Kong Telecom Tower,
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
110.CEPA Tileman Power Systems (BVI) IS N/A N/A N/A Consolidated Electric 100%
Limited Power Asia Limited
18/F Hong Kong Telecom Tower,
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
111.CEPA Mobile Power Systems (BVI) IS N/A N/A N/A Consolidated Electric 100%
18/F Hong Kong Telecom Tower, Power Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
112.CEPA Guangxi Energy (BVI) Limited IS N/A N/A N/A Consolidated Electric 100%
18/F Hong Kong Telecom Tower, Power Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
113.CEPA Nominee (BVI) Limited IS N/A N/A N/A Consolidated Electric 100%
18/F Hong Kong Telecom Tower, Power Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
114.CEPA Construction Resources (BVI) SPS N/A N/A N/A CEPA Construction Limited 100%
18/F Hong Kong Telecom Tower,
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
115. Consolidated Construction Resources SPS N/A N/A N/A CEPA Construction Limited 50%
Limited
18/F Hong Kong Telecom Tower,
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
116. HOPEC Engineering Design Limited SPS N/A N/A N/A Consolidated Construction 100%
18/F Hong Kong Telecom Tower, Resources Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
117.CEPA Construction (Hong Kong) Limited SPS N/A N/A N/A Consolidated Electric 100%
18/F Hong Kong Telecom Tower, Power Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- -------------------------------------------- ---------- ------------ ---------- -------- ---------------------------- ---------
</TABLE>
65
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
118.CEPA Operations, (Hong Kong) Limited SPS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
119.CEPA Eastern Power Plant Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
120.CEPA Pangasinan Electric Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
121.CEPA Pakistan (BVI) Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
122.CEPA India (BVI) Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
123.CEPA Operations (Phillippines) Corp. SPS N/A N/A N/A CEPA Operations, 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
124.CEPA Project Management and Engineering (BVI) IS N/A N/A N/A Consolidated 100%
Limited Electric Power
18/F Hong Kong Telecom Tower, Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
125.CEPA Energy Pakistan Limited FUCO N/A N/A N/A CEPA Pakistan 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
126.CEPA Procurement (BVI) Ltd IS N/A N/A N/A CEPA Construction 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
127.CEPA Sourcing (BVI) Ltd IS N/A N/A N/A CEPA Construction 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
66
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- --------- ---------------------------- --------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- --------- ---------------------------- --------------------- -----------
GEN TRAN DIST
--------- --------- --------
<S> <C> <C> <C> <C> <C> <C>
128.CEPA Procurement (Delaware) L.L.C. SPS N/A N/A N/A CEPA (BVI) 51%
18/F Hong Kong Telecom Tower, Procurement Limited
Taikoo Place, 979 King's Road CEPA Sourcing
Quarry Bay, Hong Kong Limited 49%
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
129.CEPA Fuels Limited (formerly CEPA Mining and IS N/A N/A N/A Consolidated 100%
Engineering Limited) Electric Power Asia
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
130.Marsford Investments Pte Ltd. I/S N/A N/A N/A CEPA Mining and 100%
18/F Hong Kong Telecom Tower, Engineering Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
131.Carrigon Management Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power Asia
Taikoo Place, 979 King's Road Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
132.Cachelot Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power Asia
Taikoo Place, 979 King's Road Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
133.CEPA Services Corp. SPS N/A N/A N/A Hopewell Mobil 100%
18/F Hong Kong Telecom Tower, Power Systems Corp.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
134.CEPA Investment (Mauritius) Limited IS N/A N/A N/A CEPA India (BVI) 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
135.Consolidated Electric Power Asia Limited FUCO N/A N/A N/A CEPA Investment 100%
(India) Private Limited (Mauritius) Limited
18/F Hong Kong Telecom Tower,
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
136.CEPA Guangxi Energy Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power Asia
Taikoo Place, 979 King's Road Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
137.Excellent Crown Limited SPS N/A N/A N/A CEPA Intern'l 100%
18/F Hong Kong Telecom Tower, Finance Corp.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- --------- --------- --------- -------- --------------------- -----------
67
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
138.Fortune Wheels Investment Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
139.Five Stars Venture Limited IS N/A N/A N/A CEPA Operations 16.98%
18/F Hong Kong Telecom Tower, (Hong Kong) Limited
Taikoo Place, 979 King's Road CEPA Project
Quarry Bay, Hong Kong Management and 15.11%
Engineering (BVI)
Limited
CEPA Construction
(Hong Kong) Limited 67.91%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
140.Hopewell Project Management Company Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
141.Hopewell Energy Limited IS N/A N/A N/A Consolidated 80%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong Foreign Company 20%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
142.Guangdong Guanghope Power Co., Ltd. FUCO N/A N/A N/A Southern 40%
18/F Hong Kong Telecom Tower, Energy(Shajiao
Taikoo Place, 979 King's Road C)Limited 60%
Quarry Bay, Hong Kong Foreign Company
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
143.Hopewell Energy International Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
144.Hopewell Energy (Phillippines) Corp. FUCO N/A N/A N/A Hopewell Project 60.1%
18/F Hong Kong Telecom Tower, Management Company
Taikoo Place, 979 King's Road Limited
Quarry Bay, Hong Kong Foreign Company 10%
SE Holdings Phil. 29.9%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
145.Hopewell Power (Phillippines) Corp. IS N/A N/A N/A Consolidated 87.22%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong Foreign Company 12.78%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
68
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
146.Hopewell Tileman (Phillippines) Corp. FUCO N/A N/A N/A S.E. Holdings 100%
18/F Hong Kong Telecom Tower, Phil., Inc.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
147.Hopewell Mobile Power Systems Corp. FUCO N/A N/A N/A S.E. Holdings 100%
18/F Hong Kong Telecom Tower, Phil., Inc.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
148.Hopewell Energy International (BVI) Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
149.Lemon Grove Investments Pty Limited SPS N/A N/A N/A Allied Queensland 100%
18/F Hong Kong Telecom Tower, Coalfields Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
150.Montana Enterprises Limited SPS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
151.New Whitwood Collieries Pty Ltd. SPS N/A N/A N/A Aberdare 100%
18/F Hong Kong Telecom Tower, Collieries Pty Ltd.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
152.Navotas II (BVI) Holdings Corp. IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
153.Pangasinan Electric Corporation FUCO N/A N/A N/A CEPA Pangasinan 96.9%
18/F Hong Kong Telecom Tower, Electric Limited
Taikoo Place, 979 King's Road Commonwealth 3.7%
Quarry Bay, Hong Kong Development Corp
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
154.Pagbilao Shipping Corporation SPS N/A N/A N/A CEPA Construction 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
155.Phillippine Power and Infrastructure Holding IS N/A N/A N/A Consolidated 100%
Corporation Electric Power
18/F Hong Kong Telecom Tower, Asia Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
69
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
156.Riverview Coal Terminal Pty Ltd. SPS N/A N/A N/A Aberdare 100%
18/F Hong Kong Telecom Tower, Collieries Pty Ltd.
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
157.CEPA - Finance Corporation SPS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power Asia
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
158.Sorensen Enterprises Limited IS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
159.Sual Construction Corporation SPS N/A N/A N/A CEPA Construction 100%
18/F Hong Kong Telecom Tower, Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
160.Treharn Assets Limited SPS N/A N/A N/A Consolidated 100%
18/F Hong Kong Telecom Tower, Electric Power
Taikoo Place, 979 King's Road Asia Limited
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
161.Tiaro Coal Pty Limited SPS N/A N/A N/A Allied Queensland 100%
18/F Hong Kong Telecom Tower, Coalfields Limited
Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
162.Southern Electric International Finance, IS N/A N/A N/A Southern Energy, 100%
Inc. International, Inc.
1105 North Market Street
Suite 1300
Wilmington, Delaware 19899
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
163.The Southern Company - Europe, plc IS N/A N/A N/A Southern Energy, 99%
31 Curzon Street Europe, Inc.
London W1Y 7AE England Southern Energy 1%
Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
164.SWEB Holdings Limited IS N/A N/A N/A SWEB Holdings U.K. 100%
800 Park Avenue
Aztec West
Almondsbury, Bristol BS12 4SE
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
165.Southern Energy Finance Company, Inc. IS N/A N/A N/A Southern Energy, 100%
900 Ashwood Parkway, Suite 500 Inc./Holdings
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
70
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
166.EPZ Lease, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 Finance Company,
Atlanta, GA 30338 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
167.EPZ Lease, LLC IS N/A N/A N/A EPZ Lease, Inc. 99%
900 Ashwood Parkway, Suite 500 Southern Energy 1%
Atlanta, GA 30338 Finance Company,
Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
168.EPZ Lease Holding A, LLC IS N/A N/A N/A EPZ Lease,LLC 99%
900 Ashwood Parkway, Suite 500 EPZ Lease, Inc. 1%
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
169.EPZ Lease Holding B, LLC IS N/A N/A N/A EPZ Lease, LLC 99%
900 Ashwood Parkway, Suite 500 EPZ Lease, Inc. 1%
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
170.EPZ Lease Holding C, LLC IS N/A N/A N/A EPZ Lease, LLC 99%
900 Ashwood Parkway, Suite 500 EPZ Lease, Inc. 1%
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
171.EPZ Lease Trust A FUCO N/A N/A N/A EPZ Lease Holding 100%
900 Ashwood Parkway, Suite 500 A, LLC
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
172.EPZ Lease Trust B FUCO N/A N/A N/A EPZ Lease Holding 100%
900 Ashwood Parkway, Suite 500 B, LLC
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
173.EPZ Lease Trust C FUCO N/A N/A N/A EPZ Lease Holding 100%
900 Ashwood Parkway, Suite 500 C, LLC
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
174.Southern Energy E Associados IS N/A N/A N/A Southern Energy 100%
Participacoes, S.A. International, Inc.
Av. Presidente Juscelino Kubitschek 50
Conj. 172
04543-000 Sao Paulo, Brazil
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
175.Cayman Energy Traders IS N/A N/A N/A Southern Energy 27.59%
P.O. Box 309 Ugland House International Inc.
South Church Street Third Party 72.41%
Grand Cayman, Cayman Islands,
British West Indies
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
176.SEI Germany - BEWAG, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 International
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
71
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- ----------------------- -----------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- ----------------------- -----------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
177 SEI Worldwide Holdings, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway, Suite 500 International
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
178. SEI Worldwide Holdings (Germany) GmbH IS N/A N/A N/A SEI Germany- BEWAG, Inc. 50%
MARKGRAFEN STRASSE 35 SEI Worldwide Holdings,
10117 Berlzn, Germany Inc. 50%
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
179.Southern Energy Holding IS N/A N/A N/A SEI Worldwide Holdings 100%
Beteiligungsgesellschaft GmbH (Germany GmbH)
MARKGRAFEN STRASSE 35
10117 Berlzn, Germany
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
180.BEWAG FUCO N/A N/A N/A Southern Energy 26%
MARKGRAFEN STRASSE 35 Beteiligungsgsellschaft
10117 Berlzn, Germany GmbH
Third Party 74%
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
181. Southern Energy Clairton, Inc. IS N/A N/A N/A Southern Energy Finance 100%
900 Ashwood Parkway, Suite 500 Company, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
182. Southern Energy Clairton, L.L.C IS N/A N/A N/A Southern Energy 85%
900 Ashwood Parkway, Suite 500 Clairton, Inc.
Atlanta, GA 30338 Southern Energy 15%
Clairton2, Inc.
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
183. Clairton 1314 B Partnership, L.P. IS N/A N/A N/A Southern Energy 27%
900 Ashwood Parkway, Suite 500 Clairton, L.L.C
Atlanta, GA 30338 Domestic Corp. 73%
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
184. Southern Energy Clairton2, Inc. IS N/A N/A N/A Southern Energy Finance 100%
900 Ashwood Parkway, Suite 500 Company, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
185.Southern Company Capital Funding, Inc. IS N/A N/A N/A Southern Energy, Inc. 100%
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
186. Southern Company Capital Trust I SPS N/A N/A N/A Southern Company 100%
900 Ashwood Parkway, Suite 500 Capital Funding, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
187. Southern Company Capital Trust II SPS N/A N/A N/A Southern Company 100%
900 Ashwood Parkway, Suite 500 Capital Funding, Inc.
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- ------------------------- ---------
</TABLE>
72
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
188. Southern Company Capital Trust III SPS N/A N/A N/A Southern Company 100%
900 Ashwood Parkway, Suite 500 Capital Funding,
Atlanta, GA 30338 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
189.Southern Company Capital Trust IV IS N/A N/A N/A Southern Company 100%
Capital Funding,
Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
190. Mobile Energy Services Holdings, Inc. IS N/A N/A N/A Southern Company 100%
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
191. Mobile Energy Services, L.L.C. IS N/A N/A N/A Mobile Energy 99%
900 Ashwood Parkway, Suite 500 Services Holdings,
Atlanta, GA 30338 Inc.
Southern Energy 1%
Resources, Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
192. Companhia Energetica de Minas Gerais FUCO N/A N/A N/A Southern Elec. 33%
(CEMIG) DoBrasil
900 Ashwood Parkway, Suite 500 Participacoes, 51%
Atlanta, GA 30338 Limitada
Foreign Govt. 16%
General Public
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
193. CEPA Construction(Hong Kong) Limited(Branch IS N/A N/A N/A CEPA Construction 100%
in the Phillippines) Limited
5/F., CTC Building, 2232 Roxas Boulevard
Pasay City,Metro Manila, Phillippines
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
194. CEPA Development(Mauritius) Company Limited IS N/A N/A N/A Shelf Company NA
900 Ashwood Parkway Ownership not
Suite 500 assigned
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
195. CEPA Energy Investment(Mauritius) Limited IS N/A N/A N/A Shelf Company NA
900 Ashwood Parkway Ownership not
Suite 500 assigned
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
196. CEPA International Finance Corporation IS N/A N/A N/A CEPA Asia Ltd. 100%
P.O. Box 71, Craigmuir Chambers, Road Town
Tortola, British Virgina Islands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
197. CEPA Project Holding(Mauritius) Limited IS N/A N/A N/A Shelf Company NA
900 Ashwood Parkway Ownership not
Suite 500 assigned
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
198. CEPA Thailand (BVI) Limited IS N/A N/A N/A CEPA Asia Ltd. 100%
P.O Box 957, Offshore Incorporations
Centre, Road Town, Tortla, British Virgin
Islands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
73
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
199. China Johnston Southern, Limited IS N/A N/A N/A Shelf Company NA
Les Jamalacs Building, Vieux Conseil Ownership not
Street, Port Louis, Mauritius assigned
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
200. Consolidated Electric Power Asia(India) IS N/A N/A N/A Shelf Company NA
Private Limited Ownership not
N. 1, Gopaljew Lane, Mathasahi, Post assigned
Taelenga Bazaar, Cuttack 753009, India
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
201. Consolidated Electric Power Asia Limited - IS N/A N/A N/A CEPA 100%
India Liaison Office
239 A & B Kharvela Nagar, Unit 11,
Bhubaneswar-1, Orissa, India
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
202. Consolidated Electric Power Asia IS N/A N/A N/A CEPA Asia Limited 100%
Limited-Thailand Regional Office
Unit 2106,21F.,Two Pacific Place, 142
Sukhumvit Road, Klongtoey, Bangkok 10110,
Thailand
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
203. Johnston Southern Development Company, LLC. IS N/A N/A N/A Southern Energy
Corporation Service Company, 1013 Centre China Limited 95%
Road, Wilmington, New Castle County, Third Party 5%
Delaware 19805
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
204. Southern Energy(Shajiao C)Limited IS N/A N/A N/A CEPA Asia Limited 80%
18th Floor, Hongkong Telecom Tower,
Taikoo Place, 979 King's Road, Quarry Bay,
Hong Kong
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
205. Southern Energy China, Ltd. IS N/A N/A N/A CEPA Asia Limited 100%
P.O. Box 957, Offshor Incorporations
Centre, Road Town, Tortola, British Virgin
Islands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
206. Southern Energy Holdings Philippines, Inc. IS N/A N/A N/A Hopewell Energy 85.11%
5/F, CTC Building, 2232 Roxas Boulevard, Int'l Ltd.
Pasay city, Metro Manila, Philippines CEPA Mobile 9.16%
Pwr.Sys.Corp
Navotas II Holdings 5.73%
(BVI)Corp.
Hopewell Proj.Mgmt
Co,Ltd. .000009%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
207. Southern Energy Project Holdings SPS N/A N/A N/A Hopewell Project 100%
Philippines, Inc. Management
Co, Ltd.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
208. Stenus Limited IS N/A N/A N/A CEPA Asia Limited 100%
P.O. Box 415, Templar House, Don Road,
St. Helier, Jersey JE48WH, Channel Islands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
74
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
209. Tranquil Star Corporation IS N/A N/A N/A CEPA Asia Limited 100%
P.O.Box 957, Offshore Incorporations
Centre, Road Town, Tortola, British Virgin
Islands
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
210. SEI New England Holding Corp. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
211. SEI New England, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
212. Newington Energy, L.L.C SPS N/A N/A N/A SEI New England 50%
900 Ashwood Parkway Hldg.Corp.
Suite 500 SEI New England 50%
Atlanta, GA 30338-4780 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
213. Southern Energy New England, L.L.C. EWG N/A N/A N/A SEI New England 50%
Hldg.Corp.
1099 Hingham Street SEI New England 50%
Inc.
Rockland, MA 02370
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
214.Southern Energy Canal, L.L.C. EWG N/A N/A N/A Southern Energy 99%
9 Freezer Road New England
P.O. Box 840 LLC
Sandwich, MA 02563 SEI New England 1%
Holding Corp
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
215. Southern Energy Kendall, L.L.C. EWG N/A N/A N/A Southern Energy 99%
New England
265 First Street LLC
Cambridge, MA 02142 SEI New England 1%
Holding Corp
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
216. Southern Energy Canal III, L.L.C. SPS N/A N/A N/A SEI New England, 50%
9 Freezer Road Inc.
P.O. Box 840 SEI New England 50%
Sandwich, MA 02563 Holding Corp
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
75
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
217. SE China Investments, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway International,
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
218.SEI Wisconsin Holdings, Inc. IS N/A N/A N/A Southern Energy 100%
North
900 Ashwood Parkway America, Inc.
Suite 500
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
219. SEI Wisconsin, L.L.C. EWG N/A N/A N/A SEI Wisconsin 100%
900 Ashwood Parkway Holding, Inc.
Suite 500
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
220. Southern Energy Texas(G.P.),Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
221. Southern Energy Southwest Investments, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
222. Southern Energy Wichita Falls, L.P. SPS N/A N/A N/A Southern Energy 99%
900 Ashwood Parkway Southwest
Suite 500 Investments,
Atlanta, GA 30338-4780 Inc.
Southern Energy 1%
Tx(G.P.)Inc
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
223. Southern Energy New York, G.P.Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
224. Southern Energy Hudson Valley Investments, IS N/A N/A N/A Southern Energy 100%
Ltd. North
900 Ashwood Parkway America, Inc.
Suite 500
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
76
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
225. Southern Energy Bowline, L.L.C. SPS N/A N/A N/A Southern Energy 99%
900 Ashwood Parkway Hudson Valley
Suite 500 Investments,
Atlanta, GA 30338-4780 Inc.
Southern Energy
New York, 1%
G.P.,Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
226. Southern Energy Lovett, L.L.C. SPS N/A N/A N/A Southern Energy 99%
900 Ashwood Parkway Hudson Valley
Suite 500 Investments,
Atlanta, GA 30338-4780 Inc.
Southern Energy
New York 1%
,G.P.Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
227. Southern Energy NY-Gen, L.L.C. SPS N/A N/A N/A Southern Energy 99%
900 Ashwood Parkway Hudson Valley
Suite 500 Investments,
Atlanta, GA 30338-4780 Inc.
Southern Energy
New York 1%
,G.P.Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
228. Southern Energy Bay Area Investments, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
229. Southern Energy Golden States Holding Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North
Suite 500 America, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
230. Southern Energy Delta, L.L.C. SPS N/A N/A N/A Southern Energy 50%
900 Ashwood Parkway Bay Area
Suite 500 Investments
Atlanta, GA 30338-4780 Southern Energy 50%
Golden States
Holding Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
231. Southern Energy Potrero, L.L.C. SPS N/A N/A N/A Southern Energy 50%
900 Ashwood Parkway Bay Area
Suite 500 Investments
Atlanta, GA 30338-4780 Southern Energy 50%
Golden States
Holding Inc.
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
77
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
231a.Southern Energy California, L.L.C. IS N/A N/A N/A Southern Energy 50%
900 Ashwood Parkway Bay Area
Suite 500 Investments
Atlanta, GA 30338-4780 Southern Energy 50%
Golden
States, Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
232. Gasoducto Nor Andino Argentina, S.A. IS N/A N/A N/A Tractebel 66.67%
Apoquindo 3721 Energia del 33.33%
Oficina 114 Limitada
Edificio "Torre Las Condes"
Las Condes, Chile
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
233. Gasoducto Nor Andino, S.A IS N/A N/A N/A Tractebel 66.67%
Apoquindo 3721 Energia del 33.33%
Oficina 114 Limitada
Edificio "Torre Las Condes"
Las Condes, Chile
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
234. Southern Energy Carbontronics, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwod Parkway Finance
Suite 500 Company, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
235. Southern Energy Carbontronics, IS N/A N/A N/A Southern Energy 99%
L.L.C. 900 Ashwod Parkway Carbontronics,
Suite 500 Inc.
Atlanta, GA 30338-4780 Southern Energy 1%
Finance
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
236. Carbontronics Synfuels Investors, L.P.(Rule IS N/A N/A N/A Domestic 75.25%
58 Energy-Related Company) Corporations
900 Ashwod Parkway Southern Energy 24.75%
Suite 500 Clairton,
Atlanta, GA 30338-4780 L.L.C.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
237. Dutch Gas Lease, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway Finance
Suite 500 Company, Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
238. Dutch Gas Lease, LLL. IS N/A N/A N/A Dutch Gas Lease, 99%
900 Ashwood Parkway Inc.
Suite 500 Southern Energy 1%
Atlanta, GA 30338-4780 Finance
Company.,Inc
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
78
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
--------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
239. Dutch Gas Lease Holding A, L.L.C. IS N/A N/A N/A Dutch Gas Lease, 99%
900 Ashwood Parkway L.L.C.
Suite 500 Dutch Gas Lease, 1%
Atlanta, GA 30338-4780 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
240. Dutch Gas Lease Trust A FUCO N/A N/A N/A Dutch Gas Lease 100%
900 Ashwood Parkway Holding A,
Suite 500 L.L.C.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
241. Dutch Gas Lease Holding B, L.L.C. IS N/A N/A N/A Dutch Gas Lease, 99%
900 Ashwood Parkway L.L.C.
Suite 500 Dutch Gas Lease, 1%
Atlanta, GA 30338-4780 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
242. Dutch Gas Lease Trust B FUCO N/A N/A N/A Dutch gas Lease 100%
900 Ashwood Parkway Holding
Suite 500
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
243. Dutch Gas Lease Holding C, L.L.C. IS N/A N/A N/A Dutch Gas Lease, 99%
900 Ashwood Parkway L.L.C.
Suite 500 Dutch Gas Lease, 1%
Atlanta, GA 30338-4780 Inc.
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
244. Dutch Gas Lease Trust C FUCO N/A N/A N/A Dutch Gas Lease 100%
900 Ashwood Parkway Holding C,
Suite 500 L.L.C.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
245. Southern Energy Development IS N/A N/A N/A SEZ Worldwide 100%
Europa GMBH Holdings GMBH
MARKGRAFENSTRASSE 35
10117 Berlzn, Germany
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
246. Southern Energy ASIA Ventures, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway ASIA Inc.
Suite 500
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
247. SWEB Holdings UK IS N/A N/A N/A Southern Electric 49%
31 Curzon Street International
London W1Y 7AE England Europe Inc.
Domestic Corp 51%
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
248. Mobile Development Company SPS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway North America
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
249. Southern Energy Caribe, Ltd. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway International,
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
250. Southern Energy Europe, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway International,
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
79
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
COMPANY, LOCATION AND ADDRESS FUCO, GENERATION, OWNERSHIP % OWNED
EWG, TRANSMISSION,
IS DISTRIBUTION
- --------------------------------------------------- ---------- ---------------------------- -------------------- ------------
GEN TRAN DIST
-------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
251. SEI Brazil Holdings, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway International,
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
252. SEI South America, Inc. IS N/A N/A N/A Southern Energy 100%
900 Ashwood Parkway International,
Suite 500 Inc.
Atlanta, GA 30338-4780
- --------------------------------------------------- ---------- -------- --------- --------- -------------------- ------------
</TABLE>
80
<PAGE>
<TABLE>
<CAPTION>
Note 1 - Generating Facilities:
Facilities in Operation
- ------------------------------ -------------------- ----------- ----------------------------- --------------- -------------------
Megawatts of Capacity Percentage
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Facility Location Units Owned Operated Ownership Type
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
<S> <C> <C> <C> <C> <C> <C>
Alicura Argentina 4 (A) 551 (A) 1,000 55.14% Hydro
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
BEWAG Germany 18 443 - 26.00% Coal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
BEWAG Germany 17 375 - 26.00% Oil & Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Birchwood Virginia 1 111 222 50.00% Coal (B)
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEPA China 3 634 - (C) 32.00% Coal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEPA Philippines 2 641 735 87.22% Coal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEPA Philippines 3 189 210 90.00% Oil
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEPA Philippines 13 381 381 100.00% Oil
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEMIG Brazil 33 193 - 3.6% Hydro
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEMIG Brazil 2 5 - 3.6% Thermal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
CEMIG Brazil 1 - - 3.6% Wind
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Edelnor Chile 2 281 341 82.34% Coal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Edelnor Chile 37 95 115 82.34% Oil
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Edelnor Chile 2 8 10 82.34% Hydro
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Freeport Grand Bahama 8 79 126 62.50% Oil
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Mobile Energy Alabama 3 111 111 100.00% Waste/Biomass (B)
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
PowerGen Co. Trinidad and Tobago 21 459 1,178 39.00% Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
State Line Indiana 2 490 490 100.00% Coal
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
South Western Electricity United Kingdom 8 71 - (C) 3.77% Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
South Western Electricity United Kingdom 12 8 16 49.00% Oil & Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
South Western Electricity United Kingdom 3 3 - (C) 18.62% Wind
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
South Western Electricity United Kingdom 3 - - (C) 12.25% Landfill Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
SE New England Maine 8 1,267 1,267 100.00% Oil & Gas
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Total Capacity 6,395 6,202(C)
- ------------------------------ -------------------- ----------- ------------ ------------- -------------- -----------------------
Facilities Under Development
- ---------------------------------- ------------------------------ ------- -------------------------- --------------- -----------
Megawatts of Capacity
Percentage
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
Facility Location Units Owned Operated Ownership Type
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
CEMIG Brazil 1 1 - 3.6% Hydro
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
CEPA Philippines 2 1,121 1,218 92.00% Coal
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
Edelnor Chile 1 206 250 82.34% Gas
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
Total Capacity 1,328 1,468
- ---------------------------------- ------------------------------ ------- ------------ -------------- --------------- ----------
(A) Represents megawatts of capacity under a concession agreement expiring in
the year 2023. (B) Cogeneration facility.
(C) Does not include Shajiao C (1,980 MW) or UK power plants (150 MW) that are
partially owned but not operated by CEPA and SWEB, respectively.
</TABLE>
81
<PAGE>
Note 2 - Transmission Facilities:
Edelnor (Chile) - approximately 978 kilometers as follows:
Operating Voltage Approximate Kilometers
(kVs)
23 17
66 197
110 298
220 466
---
978
Freeport (Grand Bahamas) - approximately 50 miles of 69 kV transmission lines.
82
<PAGE>
Note 3 - Distribution Facilities:
Freeport (Grand Bahamas) - 420 Miles of 7.2 KV Overhead
18 Miles of 7.2 KV Underground
205 Miles of 12.5 KV Overhead
20 Miles of 7.2 KV Underground
South West Electricity (United Kingdom) - approximately 48,054 kilometers as
follows:
Operating Voltage Approximate Kilometers
(kVs)
Under 5 18,943
6.6 148
11 23,668
33 3,794
132 1,523
-----
48,076
South Western Electricity's distribution system for the Isles of Scilly includes
57 kilometers of 33 kV submarine cable, which connects the islands to the
mainland, and 15 kilometers of 11 kV submarine cable which interconnects the
individual islands.
Note 4 - Notes to Item 9 - Part 1(a):
Electricity Pensions Limited and South West Enterprise Limited are both
subsidiaries of South Western Electricity, plc that show 0% ownership due to
both companies being limited by a guarantee. Electricity Pensions Limited was
created to coordinate the administration of the Electricity Supply Pension
Scheme. South West Enterprise Limited was created to catalyze, coordinate, and
promote economic development in Devon and Cornwall.
83
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
PART I(b); PART I(c) and PART I(d) are being filed pursuant to Rule 104.
PART II
Exhibits H and I submitted with this filing, are being incorporated by
reference.
PART III is being filed pursuant to Rule 104.
84
<PAGE>
ITEM 10 - FINANCIAL STATEMENTS AND EXHIBITS
SOUTHERN AND SUBSIDIARY COMPANIES
INDEX TO FINANCIAL STATEMENTS
DECEMBER 31, 1998
<TABLE>
<CAPTION>
Page
Number
<S> <C>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS A-1
FINANCIAL STATEMENTS:
Consolidating Statement of Income for the Year Ended
December 31, 1998 A-2
Consolidating Statement of Cash Flows for the Year Ended
December 31, 1998 A-4
Consolidating Balance Sheet at December 31, 1998 A-6
Consolidating Statement of Capitalization at December 31, 1998 A-10
Consolidating Statement of Retained Earnings for the Year Ended
December 31, 1998 A-14
Consolidating Statement of Paid-in Capital for the Year
Ended December 31, 1998 A-15
Notes to Financial Statements at December 31, 1998 A-16
OTHER FINANCIAL STATEMENTS:
ALABAMA consolidated with ALABAMA TRUST I and ALABAMA TRUST II A-17
Alabama Property Company (Unaudited; Not consolidated in Parent, ALABAMA) A-22
GEORGIA consolidated with PIEDMONT, GEORGIA CAPITAL, GEORGIA TRUST I,
GEORGIA TRUST II and GEORGIA TRUST III A-25
GULF consolidated with GULF TRUST I A-30
MISSISSIPPI consolidated with MISSISSIPPI TRUST I A-34
SAVANNAH consolidated with SAVANNAH ELECTRIC TRUST I A-38
EXHIBITS A-42
SCHEDULES:
Schedules supporting financial statements of ALABAMA, GEORGIA, GULF,
MISSISSIPPI, SAVANNAH and SEGCO are incorporated by reference to those
companies' annual reports on Federal Energy Regulatory Commission Form 1 for the
year ended December 31, 1998, as filed with the Federal Energy Regulatory
Commission.
</TABLE>
A
<PAGE>
ARTHUR ANDERSEN LLP
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To The Southern Company:
We have audited the consolidated balance sheet and
consolidated statement of capitalization of THE SOUTHERN COMPANY (a
Delaware corporation) and subsidiary companies as of December 31, 1998,
and the related consolidated statements of income, comprehensive
income, retained earnings, paid-in capital, accumulated other
comprehensive income, and cash flows for the year then ended (included
in the 1998 annual report on Form 10-K, which is Exhibit A-1 to this
Form U5S). These financial statements are the responsibility of the
company's management. Our responsibility is to express an opinion on
these financial statements based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
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 audit provides a reasonable basis for
our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position of The
Southern Company and subsidiary companies as of December 31, 1998, and
the results of their operations and their cash flows for the year then
ended, in conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
Atlanta, Georgia
February 10, 1999
A-1
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
OPERATING REVENUES: Consolidated Add (Deduct) SOUTHERN ALABAMA
------------ -------- -------
Subsidiary operating companies--
<S> <C> <C> <C> <C>
Revenues $11,403,686 $ (14,859) $ - $3,282,811
Sales to affiliates - (426,829) - 103,562
SOUTHERN, equity in earnings of subsidiary companies - (1,066,085) 1,066,085 -
- ------------------------------------------------------------------------------------------------------------------------------------
Total operating revenues 11,403,686 (1,507,773) 1,066,085 3,386,373
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation--
Fuel 2,371,463 - - 900,309
Purchased power from non-affiliates 1,243,288 (136) - 92,998
Purchased power from affiliates - (398,069) - 150,897
Other 2,111,129 (44,974) 58,817 527,954
Maintenance 887,242 - - 300,383
Depreciation & amortization 1,488,900 - - 338,822
Amortization of deferred Plant Vogtle costs, net 50,412 - - -
Taxes other than income taxes 598,609 - 156 193,049
Income taxes 677,476 11,884 - 224,922
Write down of assets 341,867 - - -
Income tax benefit for write down of assets (119,617) (11,701) - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total operating expenses 9,650,769 (442,996) 58,973 2,729,334
- ------------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 1,752,917 (1,064,777) 1,007,112 657,039
- ------------------------------------------------------------------------------------------------------------------------------------
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 7,129 - - 3,811
Interest income 243,060 (112,972) 58,669 68,553
Other, net 172,974 (7,541) 7,969 (35,590)
Income taxes - other income 8,169 - - 6,347
- ------------------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 2,184,249 (1,185,290) 1,073,750 700,160
- ------------------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES AND OTHER:
Interest on long-term debt 712,819 (112,006) 57,310 192,426
Allowance for debt funds used during construction (11,914) - - (4,664)
Interest on interim obligations 107,555 - 38,588 11,012
Amortization of debt discount, premium, & expense, net 65,460 - - 42,494
Other interest charges 79,624 - 1,296 44,672
Distributions on capital and preferred securities of
subsidiary companies 148,910 - - 22,354
- ------------------------------------------------------------------------------------------------------------------------------------
Interest charges and other, net 1,102,454 (112,006) 97,194 308,294
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME 1,081,795 (1,073,284) 976,556 391,866
Preferred dividends of subsidiary companies 25,289 - - 14,643
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 1,056,506 (1,073,284) 976,556 377,223
Minority Interest 79,950 (71) - -
- ------------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 976,556 $(1,073,213) $ 976,556 $377,223
====================================================================================================================================
AVERAGE NUMBER OF SHARES OF COMMON STOCK
OUTSTANDING (in thousands) 696,944
EARNINGS PER SHARE OF COMMON STOCK $1.40
CASH DIVIDENDS PAID PER SHARE OF COMMON STOCK $1.30
(Continued on following page)
</TABLE>
A-2a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
OPERATING REVENUES: GEORGIA GULF MISSISSIPPI SAVANNAH
Subsidiary operating companies--
<S> <C> <C> <C> <C>
Revenues $ 4,656,647 $ 607,876 $ 576,846 $ 251,439
Sales to affiliates 81,606 42,642 18,285 3,016
SOUTHERN, equity in earnings of subsidiary companies - - - -
- ----------------------------------------------------------------------------------------------------------------------
Total operating revenues 4,738,253 650,518 595,131 254,455
- ----------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation--
Fuel 917,119 197,462 156,539 53,021
Purchased power from non-affiliates 229,960 29,369 33,872 9,460
Purchased power from affiliates 161,003 14,445 36,037 35,687
Other 819,589 119,011 109,993 49,055
Maintenance 358,218 57,286 50,404 18,711
Depreciation & amortization 763,390 59,129 47,450 22,032
Amortization of deferred Plant Vogtle costs, net 50,412 - - -
Taxes other than income taxes 204,623 51,462 45,965 12,342
Income taxes 406,983 34,089 34,499 16,335
Write down of assets 33,536 - - -
Income tax benefit for write down of assets - - - -
- ----------------------------------------------------------------------------------------------------------------------
Total operating expenses 3,944,833 562,253 514,759 216,643
- ----------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 793,420 88,265 80,372 37,812
- ----------------------------------------------------------------------------------------------------------------------
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 3,235 - - 83
Interest income 79,578 931 947 384
Other, net (37,777) (2,339) 2,498 (1,781)
Income taxes - other income 8,351 1,890 (165) 1,234
- ----------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 846,807 88,747 83,652 37,732
- ----------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES AND OTHER:
Interest on long-term debt 180,746 19,718 20,567 10,383
Allowance for debt funds used during construction (7,117) - - (133)
Interest on interim obligations 12,213 1,190 943 278
Amortization of debt discount, premium, & expense, net 13,366 2,100 1,446 853
Other interest charges 17,105 2,548 790 474
Distributions on capital and preferred securities of
subsidiary companies 54,327 6,034 2,796 167
- ----------------------------------------------------------------------------------------------------------------------
Interest charges and other, net 270,640 31,590 26,542 12,022
- ----------------------------------------------------------------------------------------------------------------------
NET INCOME 576,167 57,157 57,110 25,710
Preferred dividends of subsidiary companies 5,939 636 2,005 2,066
- ----------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 570,228 56,521 55,105 23,644
Minority Interest - - - -
- ----------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 570,228 $ 56,521 $ 55,105 $ 23,644
======================================================================================================================
(Continued on following page)
</TABLE>
A-2b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN
OPERATING REVENUES: SEGCO ENERGY MESH
Subsidiary operating companies--
<S> <C> <C> <C>
Revenues $ 1,525 $1,818,915 $ 84,406
Sales to affiliates 148,331 - -
SOUTHERN, equity in earnings of subsidiary companies - - -
- --------------------------------------------------------------------------------------------------------
Total operating revenues 149,856 1,818,915 84,406
- --------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation--
Fuel 96,409 47,186 3,418
Purchased power from non-affiliates - 843,615 4,150
Purchased power from affiliates - - -
Other 14,282 239,275 20,058
Maintenance 14,579 79,523 7,899
Depreciation & amortization 8,232 221,232 12,394
Amortization of deferred Plant Vogtle costs, net - - -
Taxes other than income taxes 951 86,465 1,020
Income taxes 4,111 (39,894) 2,754
Write down of assets - 308,331 -
Income tax benefit for write down of assets - (107,916) -
- --------------------------------------------------------------------------------------------------------
Total operating expenses 138,564 1,677,817 51,693
- --------------------------------------------------------------------------------------------------------
OPERATING INCOME 11,292 141,098 32,713
- --------------------------------------------------------------------------------------------------------
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction - - -
Interest income - 145,581 951
Other, net 725 229,132 (8)
Income taxes - other income (49) (3,249) -
- --------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 11,968 512,562 33,656
- --------------------------------------------------------------------------------------------------------
INTEREST CHARGES AND OTHER:
Interest on long-term debt 4,267 311,237 26,366
Allowance for debt funds used during construction - - -
Interest on interim obligations - 42,670 661
Amortization of debt discount, premium, & expense, net 23 3,065 2,113
Other interest charges 208 12,531 -
Distributions on capital and preferred securities of
subsidiary companies - 63,232 -
- --------------------------------------------------------------------------------------------------------
Interest charges and other, net 4,498 432,735 29,140
- --------------------------------------------------------------------------------------------------------
NET INCOME 7,470 79,827 4,516
Preferred dividends of subsidiary companies - - -
- --------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES 7,470 79,827 4,516
Minority Interest - 79,950 71
- --------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ 7,470 $ (123) $ 4,445
========================================================================================================
(Continued on following page)
</TABLE>
A-3a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Southern Southern
OPERATING REVENUES: Linc Powercall Telecom
Subsidiary operating companies--
<S> <C> <C> <C>
Revenues $ 67,556 $ 4,173 $ 12,303
Sales to affiliates 11,040 - -
SOUTHERN, equity in earnings of subsidiary companies - - -
- ----------------------------------------------------------------------------------------------------------------------------------
Total operating revenues 78,596 4,173 12,303
- ----------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation--
Fuel - - -
Purchased power from non-affiliates - - -
Purchased power from affiliates - - -
Other 92,417 8,831 5,217
Maintenance 108 3 -
Depreciation & amortization 15,179 169 51
Amortization of deferred Plant Vogtle costs, net - - -
Taxes other than income taxes 1,951 23 388
Income taxes (11,992) (1,862) 2,797
Write down of assets - - -
Income tax benefit for write down of assets - - -
- ----------------------------------------------------------------------------------------------------------------------------------
Total operating expenses 97,663 7,164 8,453
- ----------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME (19,067) (2,991) 3,850
- ----------------------------------------------------------------------------------------------------------------------------------
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction - - -
Interest income 78 - 206
Other, net 17,686 - -
Income taxes - other income (6,190) - -
- ----------------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES (7,493) (2,991) 4,056
- ----------------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES AND OTHER:
Interest on long-term debt 1,638 - -
Allowance for debt funds used during construction - - -
Interest on interim obligations - - -
Amortization of debt discount, premium, & expense, net - - -
Other interest charges - - -
Distributions on capital and preferred securities of
subsidiary companies - - -
- ----------------------------------------------------------------------------------------------------------------------------------
Interest charges and other, net 1,638 - -
- ----------------------------------------------------------------------------------------------------------------------------------
NET INCOME (9,131) (2,991) 4,056
Preferred dividends of subsidiary companies - - -
- ----------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON
PREFERRED STOCK OF SUBSIDIARY COMPANIES (9,131) (2,991) 4,056
Minority Interest - - -
- ----------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK
AND MINORITY INTEREST OF SUBSIDIARY COMPANIES $ (9,131) $ (2,991) $ 4,056
==================================================================================================================================
The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are
an integral part of this statement.
</TABLE>
A-3b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Consolidated net income $ 976,556 $(1,098,502) $ 976,556 $ 391,866
Adjustments to reconcile consolidated net income to
net cash provided by operating activities--
Depreciation and amortization 1,722,811 - - 425,167
Deferred income taxes and investment tax credits (22,252) 6,797 - 79,430
Write-down of assets 308,331 - - -
Allowance for equity funds used during construction (7,129) - - (3,811)
Amortization of deferred Plant Vogtle costs, net 50,412 - - -
Loss (Gain) on asset sales (60,815) - - -
Other, net (158,102) (1,786) (23,527) (62,928)
Changes in certain current assets and liabilities
excluding effects from acquisitions --
Receivables, net 71,889 90,765 (74,667) (21,011)
Fossil fuel stock (39,179) - - (9,052)
Materials and supplies (10,402) - - 11,932
Accounts payable (16,760) 30,656 3,263 26,583
Other (67,371) (72,697) 1,117 (34,472)
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 2,747,989 1,044,767) 882,742 803,704
- ---------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES:
Gross property additions (2,005,288) - - (610,132)
Southern Energy business acquisitions, net of cash acquired (997,625) - - -
Sales of property 281,106 - - -
Other 85,653 913,414 (548,116) (52,940)
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (2,636,154) 913,414 (548,116) (663,072)
- ---------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds --
Common stock 234,345 - 234,345 -
Capital contributions - (554,064) 270,000 30,000
Preferred securities 435,000 - - -
Preferred stock 200,000 - - 200,000
Other long-term debt 2,972,598 (652,862) 360,825 1,462,990
Retirements --
Preferred stock (238,606) - - (88,000)
First mortgage bonds (1,487,243) - - (771,108)
Other long-term debt (599,052) 216,623 - (107,776)
Interim obligations, net (353,391) 6,400 (30,434) (306,882)
Payment of common stock dividends (933,341) 1,099,705 (933,341) (367,100)
Payment of preferred stock dividends - 30,086 - (15,596)
Miscellaneous (71,612) (14,535) (137,639) (66,869)
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES 158,698 131,353 (236,244) (30,341)
- ---------------------------------------------------------------------------------------------------------------------------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 270,533 - 98,382 110,291
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 600,820 - 34,018 23,957
- ---------------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 871,353 $ - $ 132,400 $ 134,248
=================================================================================================================================
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 997,664 $(60,267) $ 99,771 $ 234,360
Income taxes 839,321 - - 188,942
(Continued on following page)
</TABLE>
A-4a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Consolidated net income $ 576,167 $ 57,157 $ 57,110 $25,710
Adjustments to reconcile consolidated net income to
net cash provided by operating activities--
Depreciation and amortization 867,637 69,633 51,517 23,531
Deferred income taxes and investment tax credits (93,005) (4,684) 11,620 7,011
Write-down of assets - - - -
Allowance for equity funds used during construction (3,235) - - (83)
Amortization of deferred Plant Vogtle costs, net 50,412 - - -
Loss (Gain) on asset sales (974) - - -
Other, net (5,572) 3,463 (12,175) (6)
Changes in certain current assets and liabilities
excluding effects from acquisitions --
Receivables, net (33,102) 11,308 (5,486) (9,875)
Fossil fuel stock (8,066) (4,917) (5,767) 221
Materials and supplies (3,090) 609 717 484
Accounts payable 47,862 823 (389) 470
Other 6,997 (18,471) (4,061) (4,859)
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 1,402,031 114,921 93,086 42,604
- ---------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES:
Gross property additions (499,053) (69,731) (68,231) (18,071)
Southern Energy business acquisitions, net of cash acquired - - - -
Sales of property - - - -
Other 67,031 5,990 (324) 1,617
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (432,022) (63,741) (68,555) (16,454)
- ---------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds --
Common stock - - - -
Capital contributions (270,000) 522 85 -
Preferred securities - 45,000 - 40,000
Preferred stock - - - -
Other long-term debt 584,990 50,000 103,520 30,000
Retirements --
Preferred stock (106,064) (9,455) (87) (35,000)
First mortgage bonds (558,250) (45,000) (75,000) (30,000)
Other long-term debt (89,990) (8,326) (13,020) (478)
Interim obligations, net (25,378) (15,500) 13,000 -
Payment of common stock dividends (536,600) (67,200) (51,700) (23,500)
Payment of preferred stock dividends (9,137) (792) (2,005) (2,556)
Miscellaneous (26,641) (4,167) (2,429) (4,798)
- ---------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (1,037,070) (54,918) (27,636) (26,332)
- ---------------------------------------------------------------------------------------------------------------------------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (67,061) (3,738) (3,105) (182)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 83,333 4,707 4,432 6,144
- ---------------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 16,272 $ 969 $ 1,327 $ 5,962
=================================================================================================================================
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 269,524 28,044 $ 26,133 $12,198
Income taxes 480,318 38,782 26,847 9,666
(Continued on following page)
</TABLE>
A-4b
<PAGE>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
<TABLE>
<CAPTION>
SOUTHERN SOUTHERN
SEGCO SCS NUCLEAR ENERGY
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C>
Consolidated net income $ 7,470 $ - $ - $ (123)
Adjustments to reconcile consolidated net income to
net cash provided by operating activities--
Depreciation and amortization 8,881 15,847 888 229,204
Deferred income taxes and investment tax credits (216) - - (39,395)
Write-down of assets - - - 308,331
Allowance for equity funds used during construction - - - -
Amortization of deferred Plant Vogtle costs, net - - - -
Loss (Gain) on asset sales - - - (41,003)
Other, net (159) (34) 7,625 (69,716)
Changes in current assets and liabilities
excluding effects from acquisitions --
Receivables, net (1,990) 23,647 (9,123) 133,497
Fossil fuel stock - - - (11,598)
Materials and supplies - (298) - (20,537)
Accounts payable 106 1,646 2,486 (141,330)
Other (139) (1,415) (655) 54,908
- -----------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 13,953 39,393 1,221 402,238
- -----------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES:
Gross property additions (2,798) (30,117) (161) (646,843)
Southern Energy business acquisitions, net of cash acquired - - - (997,625)
Sales of property - - - 198,106
Other (461) 523 144 (294,836)
- -----------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (3,259) (29,594) (17) (1,741,198)
- -----------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES:
- - Proceeds --
Common stock - - - -
Capital contributions - - 187 501,617
Preferred securities - - - 350,000
Preferred stock - - - -
Other long-term debt - - - 1,031,894
Retirements --
Preferred stock - - - -
First mortgage bonds - - - -
Other long-term debt (1,591) (2,300) - (571,533)
Interim obligations, net - (6,400) - 25,907
Payment of common stock dividends (8,897) - - (22,190)
Payment of preferred stock dividends - - - -
Miscellaneous - - - 185,466
- -----------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (10,488) (8,700) 187 1,501,161
- -----------------------------------------------------------------------------------------------------------------------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 206 1,099 1,391 162,201
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 94 5 2,254 398,501
- -----------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 300 $ 1,104 $ 3,645 $560,702
=============================================================================================================================
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $ 4,023 $5,309 $ 355 $349,153
Income taxes 3,558 - 8,723 82,485
(Continued on following page)
</TABLE>
A-5a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Energy Southern Southern
MESH Solutions Linc Powercall Telecom SERC
<S> <C> <C> <C> <C> <C> <C>
Consolidated net income $ 4,445 $(13,234) $ (9,131) $(2,991) $ 4,056 $ -
Adjustments to reconcile consolidated net income to
net cash provided by operating activities--
Depreciation and amortization 14,507 820 15,179 - - -
Deferred income taxes and investment tax credits 7,841 2,878 (1,036) 62 445 -
Write-down of assets - - - - - -
Allowance for equity funds used during construction - - - - - -
Amortization of deferred Plant Vogtle costs, net - - - - - -
Loss (Gain) on asset sales - - (18,838) - - -
Other, net 165 11,152 (855) (19) (3,730) -
Changes in current assets and liabilities
excluding effects from acquisitions --
Receivables, net (1,402) (25,182) (310) (2,621) (2,561) 2
Fossil fuel stock - - - - - -
Materials and supplies (239) 30 259 (269) - -
Accounts payable (385) 9,410 (1,873) 2,606 1,739 (433)
Other 603 713 4,062 253 745 -
- -----------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 25,535 (13,413) (12,543) (2,979) 694 (431)
- -----------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES:
Gross property additions (2,018) (3,606) (54,527) - - -
Southern Energy business acquisitions, net of cash acquired - - - - - -
Sales of property - - 83,000 - - -
Other - (3,472) - (536) (2,381) -
- -----------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (2,018) (7,078) 28,473 (536) (2,381) -
- -----------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds --
Common stock - - - - - -
Capital contributions - 17,605 - 3,720 328 -
Preferred securities - - - - - -
Preferred stock - - - - - -
Other long-term debt - 1,241 - - - -
Retirements --
Preferred stock - - - - - -
First mortgage bonds (7,885) - - - - -
Other long-term debt - - (20,661) - - -
Interim obligations, net (14,104) - - - - -
Payment of common stock dividends (22,518) - - - - -
Payment of preferred stock dividends - - - - - -
Miscellaneous - - - - - -
- -----------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM (USED FOR) FINANCING ACTIVITIES (44,507) 18,846 (20,661) 3,720 328 -
- -----------------------------------------------------------------------------------------------------------------------------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (20,990) (1,645) (4,731) 205 (1,359) (431)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 28,780 3,730 5,208 8 5,132 517
- -----------------------------------------------------------------------------------------------------------------------------------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 7,790 $ 2,085 $ 477 $213 $ 3,773 $ 86
===================================================================================================================================
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the year for --
Interest (net of amount capitalized) $27,423 $ - $1,638 $ - $ - $ -
Income taxes - - - - - -
The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6inclusive)
are an integral part of this statement.
</TABLE>
A-5b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
ASSETS Consolidated Add (Deduct) SOUTHERN ALABAMA
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $35,363,533 $ - $ - $ 11,352,838
Less accumulated provision for depreciation 13,239,008 - - 4,666,513
- ----------------------------------------------------------------------------------------------------------------------------
22,124,525 - - 6,686,325
Nuclear fuel, at amortized cost 216,744 - - 95,575
Construction work in progress 1,782,482 - - 525,359
- ----------------------------------------------------------------------------------------------------------------------------
Total 24,123,751 - - 7,307,259
- ----------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS:
Goodwill, being amortized 2,066,765 - - -
Leasehold interests, being amortized 1,184,734 - - -
Equity investments in subsidiaries 1,560,293 (10,364,939) 10,354,821 34,298
Nuclear decommissioning trusts 516,719 - - 232,183
Miscellaneous 643,743 (1,022,496) 10,582 12,915
- ----------------------------------------------------------------------------------------------------------------------------
Total 5,972,254 (11,387,435) 10,365,403 279,396
- ----------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents 871,353 - 132,400 134,248
Special deposits 86,592 - - 4,951
Receivables--
Customer accounts receivable 1,187,489 - - 343,630
Affiliated companies 213 (1,349,310) 978,238 39,981
Other accounts and notes receivable 722,721 (80,883) 71,477 27,443
Accumulated provision for uncollectible accounts (112,511) - - (1,855)
Refundable income taxes - (129,951) - 52,117
Fossil fuel stock, at average cost 251,974 - - 83,238
Materials and supplies, at average cost 515,715 - - 149,669
Prepayments 101,844 (8,531) 111 17,160
Vacation pay deferred 80,752 - - 28,390
- ----------------------------------------------------------------------------------------------------------------------------
Total 3,706,142 (1,568,675) 1,182,226 878,972
- ----------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES AND OTHER ASSETS:
Deferred charges related to income taxes 1,035,724 - - 362,953
Prepaid pension costs 490,549 (19,195) - 169,393
Deferred Plant Vogtle costs - - - -
Debt expense, being amortized 129,257 - - 8,602
Premium on reacquired debt, being amortized 294,055 - - 83,440
Nuclear decontamination and decommissioning fund 57,498 - - 31,088
Miscellaneous 383,256 (14,977) - 104,595
- ----------------------------------------------------------------------------------------------------------------------------
Total 2,390,339 (34,172) - 760,071
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $36,192,486 $(12,990,282) $11,547,629 $ 9,225,698
============================================================================================================================
(Continued on following page)
</TABLE>
A-6a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
ASSETS GEORGIA GULF MISSISSIPPI SAVANNAH
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $ 15,441,146 $ 1,809,901 $1,553,112 $ 781,964
Less accumulated provision for depreciation 6,109,331 784,111 583,957 341,930
- -------------------------------------------------------------------------------------------------------------------------
9,331,815 1,025,790 969,155 440,034
Nuclear fuel, at amortized cost 121,169 - - -
Construction work in progress 189,849 34,863 51,517 2,908
- -------------------------------------------------------------------------------------------------------------------------
Total 9,642,833 1,060,653 1,020,672 442,942
- -------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS:
Goodwill, being amortized - - - -
Leasehold interests, being amortized - - - -
Equity investments in subsidiaries 24,360 - 332 -
Nuclear decommissioning trusts 284,536 - - -
Miscellaneous 34,781 588 647 1,420
- -------------------------------------------------------------------------------------------------------------------------
Total 343,677 588 979 1,420
- -------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents 16,272 969 1,327 5,962
Special deposits 4,037 915 92 -
Receivables--
Customer accounts receivable 439,420 58,804 37,871 35,658
Affiliated companies 16,817 3,442 10,946 1,388
Other accounts and notes receivable 95,537 2,598 12,403 3,543
Accumulated provision for uncollectible accounts (5,500) (996) (621) (284)
Refundable income taxes - - - -
Fossil fuel stock, at average cost 104,133 24,213 16,418 4,984
Materials and supplies, at average cost 243,477 28,025 18,735 6,496
Prepayments 29,670 5,691 5,899 4,772
Vacation pay deferred 43,610 4,035 4,717 -
- -------------------------------------------------------------------------------------------------------------------------
Total 987,473 127,696 107,787 62,519
- -------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES AND OTHER ASSETS:
Deferred charges related to income taxes 604,488 25,308 22,697 17,130
Prepaid pension costs 103,606 13,770 - 3,281
Deferred Plant Vogtle costs - - - -
Debt expense, being amortized 51,261 2,565 4,409 3,554
Premium on reacquired debt, being amortized 173,858 18,883 9,304 8,570
Nuclear decontamination and decommissioning fund 26,410 - - -
Miscellaneous 100,012 18,438 23,757 16,383
- -------------------------------------------------------------------------------------------------------------------------
Total 1,059,635 78,964 60,167 48,918
- -------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 12,033,618 $ 1,267,901 $1,189,605 $ 555,799
=========================================================================================================================
(Continued on following page)
</TABLE>
A-6b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES ELIMINATIONS
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN SOUTHERN
ASSETS SEGCO SCS NUCLEAR ENERGY
UTILITY PLANT:
<S> <C> <C> <C> <C>
Plant in service $ 320,517 $ 250,657 $ 10,932 $ 3,243,255
Less accumulated provision for depreciation 209,210 141,287 9,100 311,747
- ---------------------------------------------------------------------------------------------------------------------------------
111,307 109,370 1,832 2,931,508
Nuclear fuel, at amortized cost - - - -
Construction work in progress 4,696 98 - 967,919
- ---------------------------------------------------------------------------------------------------------------------------------
Total 116,003 109,468 1,832 3,899,427
- ---------------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS:
Goodwill, being amortized - - - 2,066,765
Leasehold interests, being amortized - - - 1,184,734
Equity investments in subsidiaries - - - 1,511,421
Nuclear decommissioning trusts - - - -
Miscellaneous 7 2,354 1,461 1,585,172
- ---------------------------------------------------------------------------------------------------------------------------------
Total 7 2,354 1,461 6,348,092
- ---------------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents 300 1,104 3,645 560,702
Special deposits - - - 59,347
Receivables--
Customer accounts receivable - - - 246,463
Affiliated companies 29,585 144,466 111,783 1,833
Other accounts and notes receivable - 28,843 97 521,117
Accumulated provision for uncollectible accounts - - - (101,243)
Refundable federal income tax - - - 65,285
Fossil fuel stock, at average cost - - - 18,971
Materials and supplies, at average cost - 2,414 - 56,533
Prepayments 778 4,824 2,467 36,915
Vacation pay deferred - - - -
- ---------------------------------------------------------------------------------------------------------------------------------
Total 30,663 181,651 117,992 1,465,923
- ---------------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES AND OTHER ASSETS:
Deferred charges related to income taxes 3,148 - - -
Prepaid pension costs - 3,716 - 215,978
Deferred Plant Vogtle costs - - - -
Debt expense, being amortized 125 - - 45,920
Premium on reacquired debt, being amortized - - - -
Nuclear decontamination and decommissioning fund - - - -
Miscellaneous 669 15,472 31,116 81,463
- ---------------------------------------------------------------------------------------------------------------------------------
Total 3,942 19,188 31,116 343,361
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 150,615 $ 312,661 $ 152,401 $ 12,056,803
=================================================================================================================================
(Continued on following page)
</TABLE>
A-7a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Energy Southern Southern
ASSETS MESH Solutions Linc Powercall Telecom SERC
UTILITY PLANT:
<S> <C> <C> <C> <C> <C> <C>
Plant in service $ 371,761 $ 3,059 $ 222,593 $ - $ 1,798 $ -
Less accumulated provision for depreciation 47,013 1,559 33,152 - 98 -
- ------------------------------------------------------------------------------------------------------------------------------
324,748 1,500 189,441 - 1,700 -
Nuclear fuel, at amortized cost - - - - - -
Construction work in progress 1,228 1,420 2,625 - - -
- ------------------------------------------------------------------------------------------------------------------------------
Total 325,976 2,920 192,066 - 1,700 -
- ------------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS:
Goodwill, being amortized - - - - - -
Leasehold interests, being amortized - - - - -
Equity investments in subsidiaries - - - - - -
Nuclear decommissioning trusts - - - - - -
Miscellaneous 2,542 8,808 - 1,455 3,507 -
- ------------------------------------------------------------------------------------------------------------------------------
Total 2,542 8,808 - 1,455 3,507 -
- ------------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents 7,790 2,085 477 213 3,773 86
Special deposits 17,200 50 - - - -
Receivables--
Customer accounts receivable 14,440 - 11,203 - - -
Affiliated companies 1 5,817 2,399 590 2,017 220
Other accounts and notes receivable 20 35,839 (101) 2,251 2,537 -
Accumulated provision for uncollectible accounts - (624) (1,299) (29) (60) -
Refundable federal income tax 2,586 8,695 732 536 - -
Fossil fuel stock, at average cost 17 - - - - -
Materials and supplies, at average cost 3,423 139 6,388 416 - -
Prepayments - - 2,088 - - -
Vacation pay deferred - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------
Total 45,477 52,001 21,887 3,977 8,267 306
- ------------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES AND OTHER ASSETS:
Deferred charges related to income taxes - - - - - -
Prepaid pension costs - - - - - -
Deferred Plant Vogtle costs - - - - - -
Debt expense, being amortized 12,821 - - - - -
Premium on reacquired debt, being amortized - - - - - -
Nuclear decontamination and decommissioning fund - - - - - -
Miscellaneous 5,458 - 50 - - 820
- ------------------------------------------------------------------------------------------------------------------------------
Total 18,279 - 50 - - 820
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 392,274 $ 63,729 $ 214,003 $5,432 $ 13,474 $ 1,126
=============================================================================================================================
(Continued on following page)
</TABLE>
A-7b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Intercompany
Eliminations
and Transfers
CAPITALIZATION AND LIABILITIES Consolidated Add (Deduct) SOUTHERN ALABAMA
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 9,796,849 $ (10,403,200) $ 9,796,849 $2,784,067
Preferred stock of subsidiaries 369,084 - - 317,512
Company or subsidiary obligated mandatorily
redeemable capital and preferred securities 2,179,440 - - 297,000
Long-term debt 10,471,692 (1,957,329) 979,383 2,646,566
- ----------------------------------------------------------------------------------------------------------------------------
Total 22,817,065 (12,360,529) 10,776,232 6,045,145
- ----------------------------------------------------------------------------------------------------------------------------
MINORITY INTEREST - (535,884) - -
- ----------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES:
Amount of securities due within one year 1,525,596 - - 521,209
Notes payable 891,336 - 25,000 -
Commercial paper 936,472 - 713,254 -
Accounts payable--
Affiliated companies - (268,844) 3,249 79,844
Other 1,026,869 34 6,354 188,074
Customer deposits 125,078 - - 29,235
Taxes accrued--
Federal and state income 49,923 (139,791) - 82,219
Other 299,051 - 9 17,559
Interest accrued 233,355 (84,286) 19,477 38,166
Vacation pay accrued 111,611 - - 28,390
Miscellaneous 542,835 (207) - 79,095
- ----------------------------------------------------------------------------------------------------------------------------
Total 5,742,126 (493,094) 767,343 1,063,791
- ----------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 4,480,970 (32,477) - 1,202,971
Deferred credits related to income taxes 714,665 - - 315,735
Accumulated deferred investment tax credits 723,393 - - 271,611
Employee benefits provisions 1 474,713 (39,331) - 81,114
Prepaid capacity revenues, net 96,080 - - 96,080
Department of Energy assessments 64,191 - - 27,202
Disallowed Plant Vogtle capacity buyback costs 54,458 - - -
Storm damage & other property reserves 23,980 - - 19,385
Miscellaneous 1,000,845 471,033 4,054 102,664
- ----------------------------------------------------------------------------------------------------------------------------
Total 7,633,295 399,225 4,054 2,116,762
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $ 36,192,486 $ (12,990,282) $11,547,629 $9,225,698
============================================================================================================================
1 Includes Post Retirement Life & Medical Provisions, Supplemental and Other Pension Accruals, Early Retirement Incentive
Program Costs and Other Work Force Reduction Costs, and Miscellaneous Post Employment Benefits.
(Continued on following page)
</TABLE>
A-8A
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
CAPITALIZATION AND LIABILITIES GEORGIA GULF MISSISSIPPI SAVANNAH
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 3,784,172 $ 427,652 $ 391,231 $ 175,865
Preferred stock of subsidiaries 15,527 4,236 31,809 -
Company or subsidiary obligated mandatorily
redeemable capital and preferred securities 689,250 85,000 35,000 40,000
Long-term debt 2,744,362 317,341 292,744 163,443
- ---------------------------------------------------------------------------------------------------------------------
Total 7,233,311 834,229 750,784 379,308
- ---------------------------------------------------------------------------------------------------------------------
MINORITY INTEREST - - - -
- ---------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES:
Amount of securities due within one year 435,085 27,000 50,020 689
Notes payable 117,634 31,500 13,000 -
Commercial paper 223,218 - - -
Accounts payable--
Affiliated companies 75,774 19,756 8,788 5,014
Other 326,317 23,697 47,113 10,833
Customer deposits 69,584 12,560 3,272 5,224
Taxes accrued--
Federal and state income 15,801 - 1,124 2,467
Other 122,359 7,432 31,379 2,891
Interest accrued 60,187 5,184 2,955 3,815
Vacation pay accrued 34,443 4,035 4,717 1,978
Miscellaneous 66,350 10,050 11,448 6,700
- ---------------------------------------------------------------------------------------------------------------------
Total 1,546,752 141,214 173,816 39,611
- ---------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 2,249,613 166,118 143,852 82,778
Deferred credits related to income taxes 284,017 52,465 37,277 21,349
Accumulated deferred investment tax credits 381,914 29,632 25,913 11,943
Employee benefits provisions 1 177,148 28,594 47,200 6,777
Prepaid capacity revenues, net - - - -
Department of Energy assessments 36,989 - - -
Disallowed Plant Vogtle capacity buyback costs 54,458 - - -
Storm damage & other property reserves - 1,605 910 2,080
Miscellaneous 69,416 14,044 9,853 11,953
- ---------------------------------------------------------------------------------------------------------------------
Total 3,253,555 292,458 265,005 136,880
- ---------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $12,033,618 $ 1,267,901 $1,189,605 $ 555,799
=====================================================================================================================
1 Includes Post Retirement Life & Medical Provisions, Supplemental and Other Pension Accruals, Early Retirement Incentive
Program Costs and Other Work Force Reduction Costs, and Miscellaneous Post Employment Benefits.
</TABLE>
(Continued on following page)
A-8b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN SOUTHEN
CAPITALIZATION AND LIABILITIES SEGCO SCS NUCLEAR ENERGY
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C>
Common stock equity $ 48,720 $ 875 $ 2,049 $ 2,641,780
Preferred stock of subsidiaries - - - -
Company or subsidiary obligated mandatorily
redeemable capital and preferred securities - - - 1,033,190
Long-term debt 70,066 33,295 5,000 4,844,926
- ------------------------------------------------------------------------------------------------------------------
Total 118,786 34,170 7,049 8,519,896
- ------------------------------------------------------------------------------------------------------------------
MINORITY INTEREST - - - 535,142
- ------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES:
Amount of securities due within one year - 2,726 - 480,209
Notes payable - - - 702,151
Commercial paper - - - -
Accounts payable--
Affiliated companies 8,704 32,754 18,752 1,799
Other 2 70,658 11,319 301,773
Customer deposits - - - 5,203
Taxes accrued--
Federal and state income 3,700 - 466 83,343
Other 300 1,103 977 112,913
Interest accrued 1,351 - - 173,243
Vacation pay accrued - 17,604 14,179 5,191
Miscellaneous 376 67,112 28,933 260,376
- ------------------------------------------------------------------------------------------------------------------
Total 14,433 191,957 74,626 2,126,201
- ------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 11,194 - - 575,955
Deferred credits related to income taxes 3,822 - - -
Accumulated deferred investment tax credits 2,380 - - -
Employee benefits provisions 1 - 68,465 69,617 33,501
Prepaid capacity revenues, net - - - -
Department of Energy assessments - - - -
Disallowed Plant Vogtle capacity buyback costs - - - -
Storm damage & other property reserves - - - -
Miscellaneous - 18,069 1,109 266,108
- ------------------------------------------------------------------------------------------------------------------
Total 17,396 86,534 70,726 875,564
- ------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $ 150,615 $ 312,661 $ 152,401 $ 12,056,803
==================================================================================================================
1 Includes Post Retirement Life & Medical Provisions, Supplemental and Other Pension Accruals, Early Retirement
Incentive Program Costs and Other Work Force Reduction Costs, and Miscellaneous Post Employment Benefits.
</TABLE>
(Continued on following page)
A-9a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING BALANCE SHEET-- DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Energy Southern Southern
CAPITALIZATION AND LIABILITIES MESH Solutions Linc Powercall Telecom SERC
CAPITALIZATION (see accompanying statements):
<S> <C> <C> <C> <C> <C> <C>
Common stock equity $ 19,333 $ 24,799 $ 92,594 $ 2,111 $ 7,947 $ 5
Preferred stock of subsidiaries - - - - - -
Company or subsidiary obligated mandatorily
redeemable capital and preferred securities - - - - - -
Long-term debt 283,059 2,170 46,666 - - -
- -------------------------------------------------------------------------------------------------------------------------------
Total 302,392 26,969 139,260 2,111 7,947 5
- -------------------------------------------------------------------------------------------------------------------------------
MINORITY INTEREST 742 - - - - -
- -------------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES:
Amount of securities due within one year 8,340 318 - - - -
Notes payable 2,051 - - - - -
Commercial paper - - - - - -
Accounts payable--
Affiliated companies 1,040 4,456 4,674 2,066 1,877 297
Other 4,750 15,779 18,769 1,174 219 4
Customer deposits - - - - - -
Taxes accrued--
Federal and state income - 47 - 26 521 -
Other 449 - 1,680 - - -
Interest accrued 13,108 - 155 - - -
Vacation pay accrued - 436 638 - - -
Miscellaneous 44 3,379 6,827 12 2,340 -
- -------------------------------------------------------------------------------------------------------------------------------
Total 29,782 24,415 32,743 3,278 4,957 301
- -------------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES:
Accumulated deferred income taxes 59,358 3,863 17,682 43 20 -
Deferred credits related to income taxes - - - - - -
Accumulated deferred investment tax credits - - - - - -
Employee benefits provisions 1 - 871 757 - - -
Prepaid capacity revenues, net - - - - - -
Department of Energy assessments - - - - - -
Disallowed Plant Vogtle capacity buyback costs - - - - - -
Storm damage & other property reserves - - - - - -
Miscellaneous - 7,611 23,561 - 550 820
- -------------------------------------------------------------------------------------------------------------------------------
Total 59,358 12,345 42,000 43 570 820
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $392,274 $ 63,729 $ 214,003 $5,432 $13,474 $ 1,126
===============================================================================================================================
1 Includes Post Retirement Life & Medical Provisions, Supplemental and Other Pension Accruals, Early Retirement Incentive
Program Costs and Other Work Force Reduction Costs, and Miscellaneous Post Employment Benefits.
The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are
an integral part of this statement.
</TABLE>
A-9b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
Common Stock Equity:
Common stock, par value $5 per share
Authorized -- 1 billion shares
Issued -- 700 million shares
<S> <C> <C> <C> <C>
Par value $ 3,498,864 $ (699,656) $3,498,864 $ 224,358
Paid-in capital 1 2,462,116 (6,299,400) 2,462,116 1,334,744
Treasury, at cost (57,863) - (57,863) -
Retained earnings 3,878,332 (3,388,743) 3,878,332 1,224,965
Accumulated other comprehensive income 15,400 (15,400) 15,400 -
- --------------------------------------------------------------------------------------------------------------------------
Total common stock equity 9,796,849 (10,403,199) 9,796,849 2,784,067
- --------------------------------------------------------------------------------------------------------------------------
Cumulative Preferred Stock of Subsidiaries:
$100 par or stated value--
4.20% to 7.00% 134,740 - - 47,512
$25 par or stated value--
5.20% to 6.80% 200,000 - - 200,000
Adjustable and auction rates--at 1/1/99:
4.00% to 4.30% 120,000 - - 120,000
- --------------------------------------------------------------------------------------------------------------------------
Total (annual dividend requirement--$23 million) 454,740 - - 367,512
Less amount due within one year 85,656 - - 50,000
- --------------------------------------------------------------------------------------------------------------------------
Total excluding amount due within one year 369,084 - - 317,512
- --------------------------------------------------------------------------------------------------------------------------
Company or Subsidiary Obligated Mandatorily
Redeemable Capital and Preferred Securities
$25 liquidation value--
6.85% to 7.00% 235,000 - - -
7.13% to 7.38% 297,000 - - 97,000
7.60% to 7.63% 415,000 - - 200,000
7.75% 649,250 - - -
8.14% to 9.00% 583,190 - - -
- --------------------------------------------------------------------------------------------------------------------------
Total (annual distribution requirement--$168 million) 2,179,440 - - 297,000
- --------------------------------------------------------------------------------------------------------------------------
1 Includes premium on preferred stock.
(Continued on following page)
</TABLE>
A-10
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
Common Stock Equity:
Common stock, par value $5 per share
Authorized -- 1 billion shares
Issued -- 700 million shares
<S> <C> <C> <C> <C>
Par value $ 344,250 $ 38,060 $ 37,691 $ 54,223
Paid-in capital 1 1,660,364 218,972 179,800 8,688
Treasury, at cost - - - -
Retained earnings 1,779,558 170,620 173,740 112,954
Accumulated other comprehensive income - - - -
- ---------------------------------------------------------------------------------------------------------------------
Total common stock equity 3,784,172 427,652 391,231 175,865
- ---------------------------------------------------------------------------------------------------------------------
Cumulative Preferred Stock of Subsidiaries:
$100 par or stated value--
4.20% to 7.00% 51,183 4,236 31,809 -
$25 par or stated value--
5.20% to 6.80% - - - -
Adjustable and auction rates--at 1/1/99:
4.00% to 4.30% - - - -
- ---------------------------------------------------------------------------------------------------------------------
Total (annual dividend requirement--$23 million) 51,183 4,236 31,809 -
Less amount due within one year 35,656 - - -
- ---------------------------------------------------------------------------------------------------------------------
Total excluding amount due within one year 15,527 4,236 31,809 -
- ---------------------------------------------------------------------------------------------------------------------
Company or Subsidiary Obligated Mandatorily
Redeemable Capital and Preferred Securities
$25 liquidation value--
6.85% to 7.00% - 45,000 - 40,000
7.13% to 7.38% - - - -
7.60% to 7.63% 175,000 40,000 - -
7.75% 414,250 - 35,000 -
8.14% to 9.00% 100,000 - - -
- ---------------------------------------------------------------------------------------------------------------------
Total (annual distribution requirement--$168 million) 689,250 85,000 35,000 40,000
- ---------------------------------------------------------------------------------------------------------------------
1 Includes premium on preferred stock.
</TABLE>
(Continued on following page.)
A-10b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN SOUTHERN
SEGCO SCS NUCLEAR ENERGY
Common Stock Equity:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
Issued -- 700 million shares
<S> <C> <C> <C> <C>
Par value $ 328 $725 $ 10 $ 1
Paid-in capital 1 32,472 150 2,039 2,626,379
Treasury, at cost - - - -
Retained earnings 15,920 - - -
Accumulated other comprehensive income - - - 15,400
- ---------------------------------------------------------------------------------------------------------------
Total common stock equity 48,720 875 2,049 2,641,780
- ---------------------------------------------------------------------------------------------------------------
Cumulative Preferred Stock of Subsidiaries:
$100 par or stated value--
4.20% to 7.00% - - - -
$25 par or stated value--
5.20% to 6.80% - - - -
Adjustable and auction rates--at 1/1/99:
4.00% to 4.30% - - - -
- ---------------------------------------------------------------------------------------------------------------
Total (annual dividend requirement--$23 million) - - - -
Less amount due within one year - - - -
- ---------------------------------------------------------------------------------------------------------------
Total excluding amount due within one year - - - -
- ---------------------------------------------------------------------------------------------------------------
Company or Subsidiary Obligated Mandatorily
Redeemable Capital and Preferred Securities
$25 liquidation value--
6.85% to 7.00% - - - 150,000
7.13% to 7.38% - - - 200,000
7.60% to 7.63% - - - -
7.75% - - - 200,000
8.14% to 9.00% - - - 483,190
- ---------------------------------------------------------------------------------------------------------------
Total (annual distribution requirement--$168 million) - - - 1,033,190
- ---------------------------------------------------------------------------------------------------------------
1 Includes premium on preferred stock.
</TABLE>
(Continued on following page.)
A-11a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Energy Southern Southern
MESH Solutions LINC Powercall Telecom SERC
Common Stock Equity:
Common stock, par value $5 per share
Authorized -- 1,000,000,000 shares
Issued -- 700 million shares
<S> <C> <C> <C> <C> <C> <C>
Par value $ 1 $ 1 $ 1 $ 1 $ 1 $ 5
Paid-in capital 1 14,886 54,447 157,505 5,620 3,334 -
Treasury, at cost - - - - - -
Retained earnings 4,446 29,649) 64,913) (3,510) 4,612 -
Accumulated other comprehensive income - - - - - -
- --------------------------------------------------------------------------------------------------------------------
Total common stock equity 19,333 24,799 92,593 2,111 7,947 5
- --------------------------------------------------------------------------------------------------------------------
Cumulative Preferred Stock of Subsidiaries:
$100 par or stated value--
4.20% to 7.00% - - - - - -
$25 par or stated value--
5.20% to 6.80% - - - - - -
Adjustable and auction rates--at 1/1/99:
4.00% to 4.30% - - - - - -
- --------------------------------------------------------------------------------------------------------------------
Total (annual dividend requirement--$23 million) - - - - - -
Less amount due within one year - -
- --------------------------------------------------------------------------------------------------------------------
Total excluding amount due within one year - - - - - -
- --------------------------------------------------------------------------------------------------------------------
Company or Subsidiary Obligated Mandatorily
Redeemable Capital and Preferred Securities
$25 liquidation value--
6.85% to 7.00% - - - - - -
7.13% to 7.38% - - - - - -
7.60% to 7.63% - -
7.75% - - - - - -
8.14% to 9.00% - - - - - -
- --------------------------------------------------------------------------------------------------------------------
Total (annual distribution requirement--$168 million) - - - - - -
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
A-11b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
Long-Term Debt of Subsidiaries:
First mortgage bonds --
Maturity Interest Rates
<S> <C> <C> <C> <C> <C> <C>
1999 6.13% to 8.67% 373,340 - - 170,000
2000 6.00% to 8.67% 208,840 - - 100,000
2001 8.67% 9,335 - - -
2002 8.67% 9,695 - - -
2003 6.13% to 8.67% 635,030 - - 300,000
2004 through 2008 6.07% to 8.67% 196,770 - - -
2009 through 2013 8.67% 75,210 - - -
2014 through 2018 8.67% 55,860 - - -
2019 through 2023 7.30% to 7.75% 614,000 - - 350,000
2024 through 2026 6.88% to 9.00% 287,000 - - 150,000
- ---------------------------------------------------------------------------------------------------------------------
Total first mortgage bonds 2,465,080 - - 1,070,000
Other long-term debt --
Pollution control revenue bonds --
Collateralized:
4.38% to 6.75% due 2000-2026 954,040 - - 126,050
Variable rates (3.10% to 5.25% at 1/1/99)
due 2011-2025 638,975 - - 89,800
Non-collateralized:
6.75% to 7.25% due 2003-2020 110,500 - - 1,000
Variable rates (3.15% to 5.33% at 1/1/99)
due 2021-2037 880,125 - - 324,290
Long-term notes payable --
6.13% to 11.00% due 1999-2002 437,373 - - -
5.35% to 9.75% due 2003-2004 361,121 - - 156,200
5.49% to 10.50% due 2005 550,800 - - 225,000
6.80% to 8.14% due 2006 581,761 - - -
7.16% to 10.25% due 2007 447,299 - - -
3.66% to 10.56% due 2008-2015 958,506 - - 260,000
6.38% to 8.12% due 2018-2038 803,000 - - 325,000
6.88% to 7.13% due 2047-2048 728,800 - - 583,800
Adjustable rates (5.23% to 7.10% at 1/1/99)
due 1999-2001 397,141 - - -
Adjustable rates (6.58% at 1/1/99)
due 2002 792,473 - - -
Adjustable rates (3.96% at 1/1/99)
due 2004 515,433 - - -
Adjustable rates (6.93% to 7.57% at 1/1/99)
due 2005-2007 252,467 - - -
Long-term notes payable to affiliates - (1,957,329) 979,383 -
Capitalized lease obligations 134,681 - - 6,119
Unamortized debt premium (discount), net (97,943) - - (49,484)
- ---------------------------------------------------------------------------------------------------------------------
Total long-term debt (annual interest
requirement--$771 million) 11,911,632 (1,957,329) 979,383 3,117,775
Less amount due within one year 1,439,940 - - 471,209
- ---------------------------------------------------------------------------------------------------------------------
Long-term debt excluding amount due
within one year 10,471,692 (1,957,329) 979,383 2,646,566
- ---------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION $22,817,065 $(12,360,528) $10,776,232 $6,045,145
=====================================================================================================================
(Continued on following page.)
</TABLE>
A-12a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
GEORGIA GULF MISSISSIPPI SAVANNAH
Long-Term Debt of Subsidiaries:
First mortgage bonds --
Maturity Interest Rates
<S> <C> <C> <C> <C> <C> <C>
1999 6.13% to 8.67% 195,000 - - -
2000 6.00% to 8.67% 100,000 - - -
2001 8.67% - - - -
2002 8.67% - - - -
2003 6.13% to 8.67% 275,000 30,000 - 20,000
2004 through 2008 6.07% to 8.67% 60,000 25,000 35,000 20,000
2009 through 2013 8.67% - - - -
2014 through 2018 8.67% - - - -
2019 through 2023 7.30% to 7.75% 204,000 - 35,000 25,000
2024 through 2026 6.88% to 9.00% 62,000 30,000 30,000 15,000
- ---------------------------------------------------------------------------------------------------------------------
Total first mortgage bonds 896,000 85,000 100,000 80,000
Other long-term debt --
Pollution control revenue bonds --
Collateralized:
4.38% to 6.75% due 2000-2026 692,485 108,700 26,805 -
Variable rates (3.10% to 5.25% at 1/1/99)
due 2011-2025 491,190 20,000 33,900 4,085
Non-collateralized:
6.75% to 7.25% due 2003-2020 - - - -
Variable rates (3.15% to 5.33% at 1/1/99)
due 2021-2037 487,515 40,930 13,520 13,870
Long-term notes payable --
6.13% to 11.00% due 1999-2002 - - - 10,000
5.35% to 9.75% due 2003-2004 - - 35,000 -
5.49% to 10.50% due 2005 150,000 - - -
6.80% to 8.14% due 2006 - - - -
7.16% to 10.25% due 2007 - - - -
3.66% to 10.56% due 2008-2015 - - - 30,000
6.38% to 8.12% due 2018-2038 200,000 70,000 55,000 -
6.88% to 7.13% due 2047-2048 145,000 - - -
Adjustable rates (5.23% to 7.10% at 1/1/99)
due 1999-2001 - 27,000 80,000 20,000
Adjustable rates (6.58% at 1/1/99)
due 2002 - - - -
Adjustable rates (3.96% at 1/1/99)
due 2004 - - - -
Adjustable rates (6.93% to 7.57% at 1/1/99)
due 2005-2007 - - - -
Long-term notes payable to affiliates - - - -
Capitalized lease obligations 86,280 - - 6,177
Unamortized debt premium (discount), net (4,679) (7,289) (1,461) -
- ---------------------------------------------------------------------------------------------------------------------
Total long-term debt (annual interest
requirement--$771 million) 3,143,791 344,341 342,764 164,132
Less amount due within one year 399,429 27,000 50,020 689
- ---------------------------------------------------------------------------------------------------------------------
Long-term debt excluding amount due
within one year 2,744,362 317,341 292,744 163,443
- ---------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION $ 7,233,311 $ 834,229 $ 750,784 $379,308
=====================================================================================================================
</TABLE>
(Continued on following page.)
A-12b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
SOUTHERN SOUTHERN
SEGCO SCS NUCLEAR ENERGY
Long-Term Debt of Subsidiaries:
First mortgage bonds --
Maturity Interest Rates
<S> <C> <C> <C> <C> <C> <C>
1999 6.13% to 8.67% - - - -
2000 6.00% to 8.67% - - - -
2001 8.67% - - - -
2002 8.67% - - - -
2003 6.13% to 8.67% - - - -
2004 through 2008 6.07% to 8.67% - - - -
2009 through 2013 8.67% - - - -
2014 through 2018 8.67% - - - -
2019 through 2023 7.30% to 7.75% - - - -
2024 through 2026 6.88% to 9.00% - - - -
- -------------------------------------------------------------------------------------------------------------------------
Total first mortgage bonds - - - -
Other long-term debt --
Pollution control revenue bonds --
Collateralized:
4.38% to 6.75% due 2000-2026 - - - -
Variable rates (3.10% to 5.25% at 1/1/99)
due 2011-2025 - - - -
Non-collateralized:
6.75% to 7.25% due 2003-2020 24,500 - - -
Variable rates (3.15% to 5.33% at 1/1/99)
due 2021-2037 - - - -
Long-term notes payable --
6.13% to 11.00% due 1999-2002 - - - 427,373
5.35% to 9.75% due 2003-2004 - - - 169,921
5.49% to 10.50% due 2005 - - - 175,800
6.80% to 8.14% due 2006 - - - 581,761
7.16% to 10.25% due 2007 - - - 447,299
3.66% to 10.56% due 2008-2015 - - - 666,018
6.38% to 8.12% due 2018-2038 - - - 153,000
6.88% to 7.13% due 2047-2048 - - - -
Adjustable rates (5.23% to 7.10% at 1/1/99)
due 1999-2001 45,811 - - 224,330
Adjustable rates (6.58% at 1/1/99)
due 2002 - - - 792,473
Adjustable rates (3.96% at 1/1/99)
due 2004 - - - 515,433
Adjustable rates (6.93% to 7.57% at 1/1/99)
due 2005-2007 - - - 252,467
Long-term notes payable to affiliates - - 5,000 926,280
Capitalized lease obligations - 36,021 - 84
Unamortized debt premium (discount), net (245) - - (7,104)
- -------------------------------------------------------------------------------------------------------------------------
Total long-term debt (annual interest
requirement--$771 million) 70,066 36,021 5,000 5,325,135
Less amount due within one year - 2,726 - 480,209
- -------------------------------------------------------------------------------------------------------------------------
Long-term debt excluding amount due
within one year 70,066 33,295 5,000 4,844,926
- -------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION $118,786 $ 34,170 $ 7,049 $8,519,896
=========================================================================================================================
The notes to the financial statements (herein incorporated by reference as part of exhibit numbers A-1 through A-6 inclusive) are
an integral part of this statement.
</TABLE>
(Continued on following page.)
A-13a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF CAPITALIZATION--DECEMBER 31, 1998
(Stated in Thousands of Dollars)
(Continued)
Energy Southern Southern
MESH Solutions LINC Powercall Telecom SERC
Long-Term Debt of Subsidiaries:
First mortgage bonds --
Maturity Interest Rates
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1999 6.13% to 8.67% 8,340 - - - - -
2000 6.00% to 8.67% 8,840 - - - - -
2001 8.67% 9,335 - - - - -
2002 8.67% 9,695 - - - - -
2003 6.13% to 8.67% 10,030 - - - - -
2004 through 2008 6.07% to 8.67% 56,770 - - - - -
2009 through 2013 8.67% 75,210 - - - - -
2014 through 2018 8.67% 55,860 - - - - -
2019 through 2023 7.30% to 7.75% - - - - - -
2024 through 2026 6.88% to 9.00% - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total first mortgage bonds 234,080 - - - - -
Other long-term debt --
Pollution control revenue bonds --
Collateralized:
4.38% to 6.75% due 2000-2026 - - - - - -
Variable rates (3.10% to 5.25% at 1/1/99)
due 2011-2025 - - - - - -
Non-collateralized:
6.75% to 7.25% due 2003-2020 85,000 - - - - -
Variable rates (3.15% to 5.33% at 1/1/99)
due 2021-2037 - - - - - -
Long-term notes payable --
6.13% to 11.00% due 1999-2002 - - - - - -
5.35% to 9.75% due 2003-2004 - - - - - -
5.49% to 10.50% due 2005 - - - - - -
6.80% to 8.14% due 2006 - - - - - -
7.16% to 10.25% due 2007 - - - - - -
3.66% to 10.56% due 2008-2015 - 2,488 - - - -
6.38% to 8.12% due 2018-2038 - - - - - -
6.88% to 7.13% due 2047-2048 - - - - - -
Adjustable rates (5.23% to 7.10% at 1/1/99)
due 1999-2001 - - - - - -
Adjustable rates (6.58% at 1/1/99)
due 2002 - - - - - -
Adjustable rates (3.96% at 1/1/99)
due 2004 - - - - - -
Adjustable rates (6.93% to 7.57% at 1/1/99)
due 2005-2007 - - - - - -
Long-term notes payable to affiliates - - 46,666 - - -
Capitalized lease obligations - - - - - -
Unamortized debt premium (discount), net (27,681) - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total long-term debt (annual interest
requirement--$771 million) 291,399 2,488 46,666 - - -
Less amount due within one year 8,340 318 - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
Long-term debt excluding amount due
within one year 283,059 2,170 46,666 - - -
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION $302,392 $26,969 $ 139,259 $2,111 $7,947 $5
====================================================================================================================================
The notes to the financial statements (herein incorporated by reference as part
of exhibit numbers A-1 throughA-6 inclusive) are an integral part of this
statement.
</TABLE>
A-13b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 3,842,135 $ (3,367,269) $ 3,842,135 $ 1,221,467
ADD:
Net income after dividends on preferred
stock of subsidiary companies 976,556 (1,073,213) 976,556 377,223
- ----------------------------------------------------------------------------------------------------------------------------------
4,818,691 (4,440,482) 4,818,691 1,598,690
DEDUCT (ADD):
Cash dividends paid on common stock 933,341 (1,044,795) 933,341 367,100
Other common and preferred stock
transactions, net 7,018 (6,943) 7,018 6,625
- ----------------------------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 3,878,332 $ (3,388,744) $ 3,878,332 $ 1,224,965
==================================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 1,745,347 $172,208 $ 170,417 $112,720
ADD:
Net income after dividends on preferred
stock of subsidiary companies 570,228 56,521 55,105 23,644
- -----------------------------------------------------------------------------------------------------------------
2,315,575 228,729 225,522 136,364
DEDUCT (ADD):
Cash dividends paid on common stock 536,600 57,200 51,700 23,500
Other common and preferred stock
transactions, net (583) 909 82 (90)
- -----------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 1,779,558 $170,620 $ 173,740 $112,954
=================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
SOUTHERN Energy
SEGCO Energy MESH Solutions
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 17,145 $ 124 $ - $ (16,415)
ADD:
Net income after dividends on preferred
stock of subsidiary companies 7,470 (123) 4,445 (13,234)
- ----------------------------------------------------------------------------------------------------------
24,615 1 4,445 (29,649)
DEDUCT (ADD):
Cash dividends paid on common stock 8,695 - - -
Other common and preferred stock
transactions, net - - - -
- ----------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 15,920 $ 1 $ 4,445 $ (29,649)
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Southern
Linc Powercall Telecom
<S> <C> <C> <C>
BALANCE, December 31, 1997 $ (55,781) $ (519) $ 556
ADD:
Net income after dividends on preferred
stock of subsidiary companies (9,131) (2,991) 4,056
- ------------------------------------------------------------------------------------------------------------
(64,912) (3,510) 4,612
DEDUCT (ADD):
Cash dividends paid on common stock - - -
Other common and preferred stock
transactions, net - - -
- ------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ (64,912) $ (3,510) $ 4,612
============================================================================================================
</TABLE>
A-14
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL 1
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Intercompany
Eliminations
and Transfers
Consolidated Add (Deduct) SOUTHERN ALABAMA
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 2,330,537 $ (6,015,104) $2,330,537 $ 1,304,744
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof 132,595 - 132,595 -
Contributions to (distributions from) capital - (283,270) - 30,000
Conversion of debt to equity - - - -
Translation adjustment - - - -
Unrealized gains/losses on investment
valuations - - - -
Other (1,016)(2) (1,026) (1,016)(2) -
- --------------------------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 2,462,116 $ (6,299,400) $2,462,116 $ 1,334,744
================================================================================================================================
1 Includes premium on preferred stock, debits for executive stock options
(ESO's), tax benefits-ESO's, PIC-treasury stock, and credits for deferred
compensation liability.
2 SOUTHERN issued 6.4 million original shares of common stock during 1998.
</TABLE>
A-15a
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL 1
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
GEORGIA GULF MISSISSIPPI SAVANNAH
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 1,930,131 $ 218,450 $179,716 $ 8,688
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - -
Contributions to (distributions from) capital (270,000) - - -
Conversion of debt to equity - - - -
Translation adjustment - - - -
Unrealized gains/losses on investment
valuations - - - -
Other 233 522 84 -
- --------------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 1,660,364 $ 218,972 $179,800 $ 8,688
====================================================================================================================
1 Includes premium on preferred stock, debits for executive stock options
(ESO's), tax benefits-ESO's, PIC-treasury stock, and credits for deferred
compensation liability.
2 SOUTHERN issued 6.4 million original shares of common stock during 1998.
</TABLE>
A-15b
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL 1
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
SOUTHERN SOUTHERN
SEGCO SCS NUCLEAR ENERGY MESH
<S> <C> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 32,472 $ 150 $ 1,852 $ 2,124,761 $ 14,887
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - - -
Contributions to (distributions from) capital - - - 501,617 -
Conversion of debt to equity - - - - -
Translation adjustment - - - - -
Unrealized gains/losses on investment
valuations - - - - -
Other - - 187 - -
- --------------------------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 32,472 $ 150 $ 2,039 $ 2,626,378 $ 14,887
================================================================================================================================
1 Includes premium on preferred stock, debits for executive stock options
(ESO's), tax benefits-ESO's, PIC-treasury stock, and credits for deferred
compensation liability.
2 SOUTHERN issued 6.4 million original shares of common stock during 1998.
</TABLE>
A-15c
<PAGE>
<TABLE>
<CAPTION>
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES
CONSOLIDATING STATEMENT OF PAID-IN CAPITAL 1
FOR THE YEAR ENDED DECEMBER 31, 1998
(Stated in Thousands of Dollars)
Energy Southern Southern
Solutions Linc Powercall Telecom
<S> <C> <C> <C> <C>
BALANCE, December 31, 1997 $ 36,842 $157,505 $ 1,900 $ 3,006
ADD (DEDUCT):
Proceeds from issuance of common
stock over the par value thereof - - - -
Contributions to (distributions from) capital 17,605 - 3,720 328
Conversion of debt to equity - - - -
Translation adjustment - - - -
Unrealized gains/losses on investment
valuations - - - -
Other - - - -
- ----------------------------------------------------------------------------------------------------------------
BALANCE, December 31, 1998 $ 54,447 $157,505 $ 5,620 $ 3,334
================================================================================================================
1 Includes premium on preferred stock, debits for executive stock options
(ESO's), tax benefits-ESO's, PIC-treasury stock, and credits for deferred
compensation liability.
2 SOUTHERN issued 6.4 million original shares of common stock during 1998.
</TABLE>
A-15d
<PAGE>
Notes to Financial Statements
at December 31, 1998
The notes to the financial statements are herein incorporated by reference as
part of exhibit numbers A-1 through A-6 inclusive and are an integral part of
the financial statements.
A-16
<PAGE>
<TABLE>
<CAPTION>
ALABAMA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
ALABAMA ALABAMA ALABAMA ALABAMA
Consolidated Eliminations CORPORATE TRUST I TRUST II
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
TOTAL OPERATING REVENUES $ 3,386,373 $ - $ 3,386,373 $ - $ -
- ------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel 900,309 - 900,309 - -
Purchased and interchanged, net 92,998 - 92,998 - -
Purchase power from affiliates 150,897 - 150,897 - -
Other 527,954 - 527,954 - -
Maintenance 300,383 - 300,383 - -
Depreciation and amortization 338,822 - 338,822 - -
Taxes other than income taxes 193,049 - 193,049 - -
Federal and state income taxes 224,922 - 224,922 - -
- ------------------------------------------------------------------------------------------------------------------------------
Total operating expenses 2,729,334 - 2,729,334 - -
- ------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 657,039 657,039
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 3,811 - 3,811 - -
Income from subsidiary 5,271 - 5,271 - -
Interest income 68,553 (23,736) 69,244 7,375 15,670
Other, net (40,861) - (40,861) - -
Income taxes applicable to other income 6,347 - 6,347 - -
- ------------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 700,160 (23,736) 700,851 7,375 15,670
- ------------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 192,426 (23,045) 215,471 - -
Allowance for debt funds used during construction (4,664) - (4,664) - -
Interest on interim obligations 11,012 - 11,012 - -
Amortization of debt discount, premium and expense, net 42,494 - 42,494 - -
Other interest charges 44,672 - 44,672 - -
Distributions on preferred securities of subsidiaries 22,354 (691) - 7,375 15,061
- ------------------------------------------------------------------------------------------------------------------------------
Net interest charges 308,294 (23,736) 308,985 7,375 15,061
- ------------------------------------------------------------------------------------------------------------------------------
NET INCOME 391,866 - 391,866 - 609
DIVIDENDS ON PREFERRED STOCK 14,643 - 14,643 - -
- -----------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 377,223 $ - $ 377,223 $ - $ 609
==============================================================================================================================
</TABLE>
A-17
<PAGE>
<TABLE>
<CAPTION>
ALABAMA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
- ---------------------------------------------------------------------------------------------------------------------------------
ALABAMA ALABAMA ALABAMA ALABAMA
Consolidated Eliminations CORPORATE TRUST I TRUST II
- ---------------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C> <C>
Net Income $ 391,866 $ - $ 391,866 $ - $ -
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization 425,167 - 425,167 - -
Deferred income taxes, net 79,430 - 79,430 - -
Allowance for equity funds used during construction (3,811) - (3,811) - -
Other, net (62,928) - (62,928) - -
Change in current assets and liabilities -
Receivables, net 49,747 - 49,747 - -
Inventories 2,880 - 2,880 - -
Payables 26,583 - 26,583 - -
Taxes accrued 4,570 - 4,570 - -
Energy cost recovery, retail (95,427) - (95,427) - -
Other (14,373) - (14,373) - -
- ----------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 803,704 - 803,704 - -
- ----------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Gross property additions (610,132) - (610,132) - -
Other (52,940) - (52,940) - -
- ----------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (663,072) - (663,072) - -
- ----------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Capital contributions 30,000 - 30,000 - -
Preferred stock 200,000 - 200,000 - -
Other long term debt 1,462,990 - 1,462,990 - -
Retirements--
Preferred stock (88,000) - (88,000) - -
First mortgage bonds (771,108) - (771,108) - -
Other long term debt (107,776) - (107,776) - -
Interim obligations, net (306,882) - (306,882) - -
Payment of common stock dividends (367,100) - (367,100) - -
Payment of preferred stock dividends (15,596) - (15,596) - -
Other-- (66,869) - (66,869) - -
- ----------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS (30,341) - (30,341) - -
- ----------------------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS 110,291 - 110,291 - -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD 23,957 - 23,957 - -
- ----------------------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ 134,248 $ - $ 134,248 $ - $ -
============================================================================================================================
</TABLE>
A-18
<PAGE>
<TABLE>
<CAPTION>
ALABAMA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
ALABAMA ALABAMA ALABAMA
Consolidated Eliminations CORPORATE TRUST I TRUST II
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
UTILITY PLANT $ 7,307,259 $ - $ 7,307,259 $ - $ -
- -----------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 279,396 (315,372) 288,582 100,000 206,186
- -----------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents 134,248 - 134,248 - -
Receivables -
Customer accounts receivable 343,630 - 343,630 - -
Affiliated companies 39,981 - 39,981 - -
Other accounts receivable 32,394 - 32,394 - -
Accumulated provision for uncollectible accts (1,855) - (1,855) - -
Refundable income taxes 52,117 - 52,117 - -
Fossil fuel stock, at average cost 83,238 - 83,238 - -
Materials and supplies, at average cost 149,669 - 149,669 - -
Prepayments 17,160 - 17,160 - -
Vacation pay deferred 28,390 - 28,390 - -
- -----------------------------------------------------------------------------------------------------------------------------
TOTAL 878,972 - 878,972 - -
- -----------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Deferred charges related to income taxes 362,953 - 362,953 - -
Debt expense, being amortized 8,602 - 8,602 - -
Premium on reacquired debt, being amortized 83,440 - 83,440 - -
Prepaid pension Costs 169,393 - 169,393 - -
Department of Energy assessments 31,088 - 31,088 - -
Miscellaneous 104,595 - 104,595 - -
- -----------------------------------------------------------------------------------------------------------------------------
TOTAL 760,071 - 760,071 - -
- -----------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 9,225,698 $ (315,372) $ 9,234,884 $ 100,000 $ 206,186
=============================================================================================================================
</TABLE>
A-19
<PAGE>
<TABLE>
<CAPTION>
ALABAMA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
ALABAMA ALABAMA ALABAMA ALABAMA
Consolidated Eliminations CORPORATE TRUST I TRUST II
- -------------------------------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C> <C> <C>
Common Stock Equity $ 2,784,067 $ - $ 2,784,067 $ - $ -
Preferred Stock 317,512 - 317,512 - -
Company obligated mandatorily
redeemable preferred securities 297,000 (9,186) 297,000 100,000 206,186
Long-term debt 2,646,566 (306,186) 2,646,566 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 6,045,145 (315,372) 6,045,145 100,000 206,186
- -------------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Preferred stock due within one year 50,000 - 50,000 - -
Long-term debt due within one year 471,209 - 471,209 - -
Accounts payable -
Affiliated companies 79,844 - 79,844 - -
Other 188,074 - 188,074 - -
Customer deposits 29,235 - 29,235 - -
Taxes accrued 99,778 - 99,778 - -
Interest accrued 38,166 - 38,166 - -
Vacation pay accrued 28,390 - 28,390 - -
Miscellaneous 79,095 - 79,095 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 1,063,791 - 1,063,791 - -
- -------------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes 1,202,971 - 1,202,971 - -
Accumulated deferred investment tax credits 271,611 - 271,611 - -
Prepaid capacity revenues, net 96,080 - 96,080 - -
Department of Energy assessments 27,202 - 27,202 - -
Deferred credits related to income taxes 315,735 - 315,735 - -
Natural disaster reserve 19,385 - 19,385 - -
Miscellaneous 183,778 - 183,778 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 2,116,762 - 2,116,762 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $ 9,225,698 $ (315,372)$ 9,225,698 $ 100,000 $ 206,186
===============================================================================================================================
</TABLE>
A-20
<PAGE>
Notes to ALABAMA's Consolidated
Financial Statements
(A) Represents equity in earnings of SEGCO, a non-consolidated
subsidiary in which ALABAMA has 50% ownership, which is
accounted for on the equity basis. See pages A-2 through A-16
for SEGCO's financial statements consolidated for SOUTHERN.
(B) Includes $1,535,386 equity in earnings of Alabama Property
Company, a non-consolidated subsidiary, which is accounted
for on the equity basis. See pages A-24 through A-26 for
Alabama Property Company's financial statements.
(C) Represents ALABAMA's investment in SEGCO.
(D) Includes $9,935,987 of investments in Alabama Property Company.
A-21
<PAGE>
ALABAMA PROPERTY COMPANY
STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(Unaudited; Not Consolidated in Parent, ALABAMA)
REVENUES:
Sales of recreational lots $4,660,800
Rentals 108,178
Total Revenues 4,768,978
COSTS AND EXPENSES:
Cost of recreational lot sales 2,043,510
Selling, administrative and general expenses 385,427
Total costs and expenses 2,428,937
OPERATING INCOME 2,340,041
OTHER INCOME (EXPENSE):
Interest income 213,965
Other 1,142
Total other income 215,107
-------------
INCOME BEFORE PROVISION FOR INCOME TAXES 2,555,148
PROVISION FOR INCOME TAXES 1,019,762
-------------
NET INCOME $ 1,535,386
=============
ALABAMA PROPERTY COMPANY
STATEMENT OF RETAINED EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Unaudited; Not Consolidated in Parent, ALABAMA)
RETAINED EARNINGS AT DECEMBER 31, 1997 $8,950,601
Net income 1,535,386
Less: Cash dividends 1,000,000
-----------
RETAINED EARNINGS AT DECEMBER 31, 1998 $9,485,987
==========
A-22
<PAGE>
ALABAMA PROPERTY COMPANY
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(Unaudited; Not Consolidated in Parent, ALABAMA)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 1,535,385
-------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Changes in current assets and liabilities:
(Increase) decrease in receivables 11,736
Increase (decrease) in accounts payable (554,274)
Increase (decrease) in taxes accrued 538,921
------------
Net Cash Provided From Operations (3,617)
INVESTING AND FINANCING ACTIVITIES:
Gross property additions, net 1,856,857
Cash used for payment of common stock dividends (1,000,000)
Net Cash Used 856,857
------------
NET CHANGE IN CASH AND CASH EQUIVALENTS 2,388,625
CASH AND CASH EQUIVALENTS, Beginning of year 3,051,038
-----------
CASH AND CASH EQUIVALENTS, End of year $5,439,663
==========
A-23
<PAGE>
ALABAMA PROPERTY COMPANY
BALANCE SHEET AT DECEMBER 31, 1998
(Unaudited; Not Consolidated in Parent, ALABAMA)
ASSETS
CURRENT ASSETS:
Cash $ 261,808
Temporary cash investments 5,177,855
Accounts receivable
Other 2,500
Associated Companies 26,851
-----------
Total current assets 5,469,014
PROPERTY AND MINERAL RIGHTS HELD FOR
FUTURE DEVELOPMENT 4,534,533
-----------
Total Assets $10,003,547
===========
LIABILITIES AND CAPITALIZATION
CURRENT LIABILITIES:
Accounts payable to associated companies $ 98,854
Accrued income taxes (31,294)
-----------
Total current liabilities 67,560
SHAREHOLDER'S INVESTMENT:
Common stock, $150 par value; 1,000 shares
authorized, issued and outstanding 150,000
Additional paid-in capital 300,000
Retained earnings 9,485,987
-----------
Total shareholder's investment 9,935,987
-----------
Total liabilities and capitalization $10,003,547
===========
A-24
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA GEORGIA
Consolidated Eliminations CORPORATE PIEDMONT CAPITAL TRUST I
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TOTAL OPERATING REVENUES $ 4,738,253 $ (838) $ 4,738,253 $ 838 $ $ - $ -
- ------------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel 917,119 - 917,119 - - -
Purchased and interchanged, net 229,960 - 229,960 - - -
Purchase power from affiliates 161,003 - 161,003 - - -
Provision for separation benefits 2,369 - 2,369 - - -
Other 817,220 (838) 818,051 - 7 -
Maintenance 358,218 - 358,218 - - -
Depreciation and amortization 763,390 - 763,342 48 - -
Amortization of deferred Plant Vogtle
expenses, net 50,412 - 50,412 - -
Write-down of Rocky Mountain plant 33,536 - 33,536 - -
Taxes other than income taxes 204,623 - 204,285 338 - -
Federal and state income taxes 406,983 - 406,808 175 - -
- ------------------------------------------------------------------------------------------------------------------------------
Total operating expenses 3,944,833 (838) 3,945,103 561 7 -
- ------------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 793,420 - 793,150 277 (7) -
OTHER INCOME (EXPENSE):
Allowance for equity funds used during
construction 3,235 - 3,235
Equity in earnings of unconsolidated
subsidiary 3,735 - 3,735
Interest income 79,578 (56,536) 79,156 951 9,279 17,977
Other, net (41,512) - (41,015) (497)
Income taxes applicable to other income 8,351 - 8,317 34
- ------------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 846,807 (56,536) 846,578 765 9,272 17,977
- ------------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 180,746 (56,536) 236,753 529 - -
Allowance for debt funds used during construction (7,117) - (7,117) - - -
Interest on interim obligations 12,213 - 12,213 - - -
Amortization of debt discount,
premium and expense, net 13,366 - 13,366 - - -
Other interest charges 17,105 - 17,105 - - -
Distributions on preferred securities of
subsidiary companies 54,327 - - - 9,000 17,438
- ------------------------------------------------------------------------------------------------------------------------------
Net interest charges 270,640 (56,536) 272,320 529 9,000 17,438
- ------------------------------------------------------------------------------------------------------------------------------
NET INCOME 576,167 - 574,258 236 272 539
DIVIDENDS ON PREFERRED STOCK 5,939 5,939
- ------------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 570,228 $ - $ 568,319 $ 236 $ 272 $ 539
==============================================================================================================================
</TABLE>
A-25a
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA
TRUST II TRUST III
- -----------------------------------------------------------------------
<S> <C> <C>
TOTAL OPERATING REVENUES $ - $ -
- -----------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel - -
Purchased and interchanged, net - -
Purchase power from affiliates - -
Provision for separation benefits - -
Other - -
Maintenance - -
Depreciation and amortization - -
Amortization of deferred Plant Vogtle
expenses, net - -
Write-down of Rocky Mountain plant - -
Taxes other than income taxes - -
Federal and state income taxes - -
- -----------------------------------------------------------------------
Total operating expenses - -
- -----------------------------------------------------------------------
OPERATING INCOME - -
OTHER INCOME (EXPENSE):
Allowance for equity funds used during
construction
Equity in earnings of unconsolidated
subsidiary
Interest income 13,673 15,078
Other, net
Income taxes applicable to other income
- -----------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 13,673 15,078
- -----------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt - -
Allowance for debt funds used during construction - -
Interest on interim obligations - -
Amortization of debt discount,
premium and expense, net - -
Other interest charges - -
Distributions on preferred securities of
subsidiary companies 13,263 14,626
- -----------------------------------------------------------------------
Net interest charges 13,263 14,626
- -----------------------------------------------------------------------
NET INCOME 410 452
DIVIDENDS ON PREFERRED STOCK
- ----------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 410 $ 452
=======================================================================
</TABLE>
A-25b
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
Consolidated Eliminations CORPORATE PIEDMONT CAPITAL
- ---------------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C> <C>
Net Income $ 576,167 $ - $ 574,258 $ 236 $ 272
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization 867,637 - 867,532 105 -
Deferred income taxes, net (93,005) - (93,001) (4) -
Allowance for equity funds used during construction (3,235) - (3,235) - -
Amortization of deferred Plant Vogtle costs 50,412 - 50,412 - -
Other, net (6,546) - (6,546) - -
Change in current assets and liabilities -
Receivables, net (25,453) 1,596 (25,453) - (272)
Inventories (11,156) (11,156) - -
Payables 47,862 (1,596) 49,535 - -
Taxes accrued 22,139 22,312 (173) -
Other (22,791) (22,791) - -
- --------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 1,402,031 - 1,401,867 164 -
- --------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Property additions (499,053) (499,053) - -
Sales of property 67,031 67,031 - -
- --------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (432,022) - (432,022) - -
- --------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Pollution control bonds 89,990 - 89,990 - -
Senior notes 495,000 - 495,000 - -
Other Long term debt - - (629) 629 -
Retirements--
Preferred stock (106,064) - (106,064) - -
First mortgage bonds (558,250) - (558,250) - -
Other long term debt (89,990) - (89,990) - -
Interim obligations, net (25,378) - (25,378) - -
Capital distribution to parent company (270,000) - (270,000) - -
Payment of common stock dividends (536,600) - (536,600) - -
Payment of preferred stock dividends (9,137) - (9,137) - -
Other-- (26,641) - (25,803) (838) -
- --------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS (1,037,070) - (1,036,861) (209) -
- --------------------------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS (67,061) - (67,016) (45) -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD 83,333 - 83,288 45 -
- --------------------------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ 16,272 $ - $ 16,272 $ - $ -
================================================================================================================================
</TABLE>
A-26a
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
TRUST I TRUST II TRUST III
- ----------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C>
Net Income $ 539 $ 410 $ 452
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization - - -
Deferred income taxes, net - - -
Allowance for equity funds used during construction - - -
Amortization of deferred Plant Vogtle costs - - -
Other, net - - -
Change in current assets and liabilities -
Receivables, net (539) (373) (412)
Inventories - - -
Payables - (37) (40)
Taxes accrued - - -
Other - - -
- ----------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES - - -
- ----------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Property additions - - -
Sales of property - - -
- ----------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES - - -
- ----------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Pollution control bonds - - -
Senior notes - - -
Other Long term debt - - -
Retirements--
Preferred stock - - -
First mortgage bonds - - -
Other long term debt - - -
Interim obligations, net - - -
Capital distribution to parent company - - -
Payment of common stock dividends - - -
Payment of preferred stock dividends - - -
Other-- - - -
- ----------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS - - -
- ----------------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS - - -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD - - -
- ----------------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ - $ - $ -
======================================================================================================================
</TABLE>
A-26b
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
Consolidated Eliminations CORPORATE PIEDMONT CAPITAL
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
UTILITY PLANT $9,663,242 $ - $9,644,159 $19,083 $ -
- ----------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 323,268 (756,625) 367,180 2,139 103,100
- ----------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents 16,272 - 16,272 - -
Receivables -
Customer accounts receivable 439,420 - 439,420 - -
Affiliated companies 16,817 - 16,817 - -
Other accounts receivable 99,574 (3,787) 99,574 - 1,065
Accumulated provision for uncollectible accts (5,500) - (5,500) - -
Fossil fuel stock, at average cost 104,133 - 104,133 - -
Materials and supplies, at average cost 243,477 - 243,477 - -
Prepayments 29,670 - 29,670 - -
Vacation pay deferred 43,610 - 43,610 - -
- ----------------------------------------------------------------------------------------------------------------------
TOTAL 987,473 (3,787) 987,473 - 1,065
- ----------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Deferred charges related to income taxes 604,488 - 604,488 - -
Deferred Plant Vogtle costs - - - - -
Premium on reacquired debt, being amortized 173,858 - 173,858 - -
Prepaid pension costs 103,606 - 103,606 - -
Miscellaneous 177,683 - 177,683 - -
- ----------------------------------------------------------------------------------------------------------------------
TOTAL 1,059,635 - 1,059,635 - -
- ----------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $12,033,618 $ (760,412) $12,058,447 $21,222 $ 104,165
======================================================================================================================
</TABLE>
A-27a
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
TRUST I TRUST II TRUST III
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
UTILITY PLANT $ - $ - $ -
- -----------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 231,959 180,412 195,103
- -----------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents - - -
Receivables -
Customer accounts receivable - - -
Affiliated companies - -
Other accounts receivable 1,212 806 704
Accumulated provision for uncollectible accts - - -
Fossil fuel stock, at average cost - - -
Materials and supplies, at average cost - - -
Prepayments - - -
Vacation pay deferred - - -
- -----------------------------------------------------------------------------------------------------------------
TOTAL 1,212 806 704
- -----------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Deferred charges related to income taxes - - -
Deferred Plant Vogtle costs - - -
Premium on reacquired debt, being amortized - - -
Prepaid pension costs - - -
Miscellaneous - - -
- -----------------------------------------------------------------------------------------------------------------
TOTAL - - -
- -----------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 233,171 $ 181,218 $ 195,807
=================================================================================================================
</TABLE>
A-27b
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
Consolidated Eliminations CORPORATE PIEDMONT CAPITAL
- -------------------------------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C> <C> <C>
Common Stock Equity $ 3,784,172 $ (32,778) $ 3,784,172 $ 7,667 $ 4,165
Preferred Stock 15,527 - 15,527 - -
Company obligated mandatorily
redeemable preferred securities 689,250 - - - 100,000
Long-term debt 2,744,362 (723,847) 3,454,936 13,273 -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 7,233,311 (756,625) 7,254,635 20,940 104,165
- -------------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Preferred stock due within one year 35,656 - 35,656 - -
Long-term debt due within one year 399,429 - 399,429 - -
Notes payable to banks 117,634 - 117,634 - -
Commercial paper 223,218 - 223,218 - -
Accounts payable -
Affiliated companies 75,774 - 75,774 - -
Other 326,317 - 326,317 - -
Customer deposits 69,584 - 69,584 - -
Taxes accrued 138,160 - 137,715 445 -
Interest accrued 60,187 (3,787) 63,974 - -
Miscellaneous 100,793 - 100,793 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 1,546,752 (3,787) 1,550,094 445 -
- -------------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes 2,249,613 - 2,249,776 (163) -
Accumulated deferred investment tax credits 381,914 - 381,914 - -
Deferred credits related to income taxes 284,017 - 284,017 - -
Employee benefits provisions 177,148 - 177,148 - -
Miscellaneous 160,863 - 160,863 - -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 3,253,555 - 3,253,718 (163) -
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $12,033,618 $ (760,412) $12,058,447 $ 21,222 $ 104,165
===============================================================================================================================
</TABLE>
A-28a
<PAGE>
<TABLE>
<CAPTION>
GEORGIA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GEORGIA GEORGIA GEORGIA
TRUST I TRUST II TRUST III
- ------------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C>
Common Stock Equity $ 8,171 $ 6,218 $ 6,557
Preferred Stock - -
Company obligated mandatorily
redeemable preferred securities 225,000 175,000 189,250
Long-term debt - -
- ------------------------------------------------------------------------------------------------------------
TOTAL 233,171 181,218 195,807
- ------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Preferred stock due within one year - - -
Long-term debt due within one year - - -
Notes payable to banks - - -
Commercial paper - - -
Accounts payable -
Affiliated companies - - -
Other - - -
Customer deposits - - -
Taxes accrued - - -
Interest accrued - - -
Miscellaneous - - -
- ------------------------------------------------------------------------------------------------------------
TOTAL - - -
- ------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes - - -
Accumulated deferred investment tax credits - - -
Deferred credits related to income taxes - - -
Employee benefits provisions - - -
Miscellaneous - - -
- ------------------------------------------------------------------------------------------------------------
TOTAL - - -
- ------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $ 233,171 $ 181,218 $195,807
============================================================================================================
</TABLE>
A-28b
<PAGE>
Notes to GEORGIA's Consolidated
Financial Statements
(A) Includes $3,735,000 equity in earnings for SEGCO, a
non-consolidated subsidiary in which GEORGIA has 50% ownership.
SEGCO is accounted for on the equity basis. See pages A-2 through
A-14 for SEGCO's financial statements consolidated for SOUTHERN.
(B) Includes $24,360,000 of investments in SEGCO.
A-29
<PAGE>
<TABLE>
<CAPTION>
GULF POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
GULF GULF GULF GULF
Consolidated Eliminations CORPORATE TRUST I TRUST II
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL OPERATING REVENUES $ 650,518 $ - $ 650,518 - $ -
- -----------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel 197,462 - 197,462 - -
Purchased power from non-affiliates 29,369 - 29,369 - -
Purchased power from affiliates 14,445 - 14,445 - -
Other 119,011 - 119,011 - -
Maintenance 57,286 - 57,286 - -
Depreciation and amortization 59,129 - 59,129 - -
Taxes other than income taxes 51,462 - 51,462 - -
Federal and state income taxes 34,089 - 34,089 - -
- -----------------------------------------------------------------------------------------------------------------------------
Total operating expenses 562,253 - 562,253 - -
- -----------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 88,265 - 88,265 - -
OTHER INCOME (EXPENSE):
Interest income 931 (6,229) 931 3,144 3,085
Other, net (2,339) - (2,339) - -
Income taxes applicable to other income 1,890 - 1,890 - -
- -----------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 88,747 (6,229) 88,747 3,144 3,085
- -----------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 19,718 (6,229) 25,947 - -
Other interest charges 2,548 - 2,548 - -
Interest on notes payable 1,190 - 1,190 - -
Amortization of debt discount, premium and expense, net 2,100 - 2,100 - -
Distributions on preferred securities of subsidiary trust 6,034 - - 3,050 2,984
- -----------------------------------------------------------------------------------------------------------------------------
Net interest charges 31,590 (6,229) 31,785 3,050 2,984
- -----------------------------------------------------------------------------------------------------------------------------
NET INCOME 57,157 - 56,962 94 101
DIVIDENDS ON PREFERRED STOCK 636 - 636 - -
- ----------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 56,521 $ - $ 56,326 $ 94 $ 101
=============================================================================================================================
</TABLE>
A-30
<PAGE>
<TABLE>
<CAPTION>
GULF POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
- -------------------------------------------------------------------------------------------------------------------------------
GULF GULF GULF GULF
Consolidated Eliminations CORPORATE TRUST I TRUST II
- -------------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C> <C>
Net Income $ 57,157 $ - $56,962 $ 94 $ 101
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization 69,633 - 69,633 - -
Deferred income taxes, net (4,684) - (4,684) - -
Accumulated provision for property damage 2,308 - 2,308 - -
Other, net 1,155 - 1,155 - -
Change in current assets and liabilities -
Receivables, net 11,308 195 11,308 (94) (101)
Inventories (4,308) - (4,308) - -
Payables 823 (195) 1,018 - -
Taxes accrued (7,960) - (7,960) - -
Current cost of 1995 coal contract renegotiation 812 - 812 - -
Other (11,323) - (11,323) - -
- ------------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 114,921 - 114,921 - -
- ------------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Gross property additions (69,731) - (69,731) - -
Other 5,990 47,784 4,598 - (46,392)
- ------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (63,741) 47,784 (65,133) - (46,392)
- ------------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Common securities - (1,392) - - 1,392
Preferred securities 45,000 - - - 45,000
Capital contributions from parent 522 - 522 - -
Other long-term debt 50,000 (46,392) 96,392 - -
Retirements--
Preferred stock (9,455) - (9,455) - -
First mortgage bonds (45,000) - (45,000) - -
Other long-term debt (8,326) - (8,326) - -
Notes payable, net (15,500) - (15,500) - -
Payment of common stock dividends (67,200) - (67,200) - -
Payment of preferred stock dividends (792) - (792) - -
Miscellaneous (4,167) - (4,167) - -
- ------------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS (54,918) (47,784) (53,526) - 46,392
- ------------------------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS (3,738) - (3,738) - -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD 4,707 - 4,707 - -
- ------------------------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ 969 $ - $ 969 $ - $ -
==============================================================================================================================
</TABLE>
A-31
<PAGE>
<TABLE>
<CAPTION>
GULF POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GULF GULF GULF GULF
Consolidated Eliminations CORPORATE TRUST I TRUST II
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
UTILITY PLANT $1,060,653 $ - $1,060,653 $ - $ -
- ---------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 588 (90,258) 3,217 41,237 46,392
- ---------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents 969 - 969 - -
Receivables -
Customer accounts receivable 49,067 - 49,067 - -
Other accounts and notes receivable 3,514 (282) 3,514 181 101
Affiliated companies 3,442 - 3,442 - -
Accumulated provision for uncollectible accts (996) - (996) - -
Fossil fuel stock, at average cost 24,213 - 24,213 - -
Materials and supplies, at average cost 28,025 - 28,025 - -
Regulatory clauses under recovery 9,737 - 9,737 - -
Prepayments 5,690 - 5,690 - -
Vacation pay deferred 4,035 - 4,035 - -
- ---------------------------------------------------------------------------------------------------------------------
TOTAL 127,696 (282) 127,696 181 101
- ---------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Debt expense and loss, being amortized 21,448 - 21,448 - -
Deferred charges related to income taxes 25,308 - 25,308 - -
Prepaid pension costs 13,770 - 13,770 - -
Miscellaneous 18,438 - 18,438 - -
- ---------------------------------------------------------------------------------------------------------------------
TOTAL 78,964 - 78,964 - -
- ---------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $1,267,901 $(90,540) $1,270,530 $41,418 $ 46,493
=====================================================================================================================
</TABLE>
A-32
<PAGE>
<TABLE>
<CAPTION>
GULF POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
GULF GULF GULF GULF
Consolidated Eliminations CORPORATE TRUST I TRUST II
- ---------------------------------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C> <C> <C>
Common Stock Equity $ 427,652 $ (2,629) $ 427,370 $ 1,418 $ 1,493
Preferred Stock 4,236 4,236
Company obligated mandatorily
redeemable preferred securities 85,000 - - 40,000 45,000
Long-term debt 317,341 (87,629) 404,970 - -
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL 834,229 (90,258) 836,576 41,418 46,493
- ---------------------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Long-term debt due within one year 27,000 - 27,000 - -
Notes payable 31,500 - 31,500 - -
Accounts payable
Affiliated companies 19,756 - 19,756 - -
Other 23,697 - 23,697 - -
Customer deposits 12,560 - 12,560 - -
Taxes accrued 7,432 - 7,432 - -
Interest accrued 5,184 (282) 5,466 - -
Regulatory clauses over recovery 6,037 - 6,037 - -
Vacation pay accrued 4,035 - 4,035 - -
Dividends declared 54 - 54 - -
Miscellaneous 3,960 - 3,960 - -
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL 141,215 (282) 141,497 - -
- ---------------------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes 166,118 - 166,118 - -
Accumulated deferred investment tax credits 29,632 - 29,632 - -
Deferred credits related to income taxes 52,465 - 52,465 - -
Accumulated provision for postretirement benefits 23,534 - 23,534 - -
Accumulated provision for property damage 1,605 - 1,605 - -
Miscellaneous 19,103 - 19,103 - -
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL 292,457 - 292,457 - -
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $1,267,901 $(90,540) $ 1,270,530 $ 41,418 $ 46,493
=================================================================================================================================
</TABLE>
A-33
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER COMPANY AND SUBSIDIARY
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(in thousands)
MISSISSIPPI MISSISSIPPI MISSISSIPPI
Consolidated Eliminations CORPORATE TRUST I
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL OPERATING REVENUES $595,131 $ - $595,131 $ -
- ------------------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel 156,539 - 156,539 -
Purchased and interchanged, net 33,872 - 33,872 -
Purchase power from affiliates 36,037 - 36,037 -
Other 109,993 - 109,993 -
Maintenance 50,404 - 50,404 -
Depreciation and amortization 47,450 - 47,450 -
Taxes other than income taxes 45,965 - 45,965 -
Federal and state income taxes 34,499 - 34,499 -
- ------------------------------------------------------------------------------------------------------------------------
Total operating expenses 514,759 - 514,759 -
- ------------------------------------------------------------------------------------------------------------------------
OPERATING INCOME 80,372 - 80,372 -
OTHER INCOME (EXPENSE):
Income from subsidiary - - - -
Interest income 947 (2,796) 947 2,796
Other, net 2,498 - 2,498 -
Income taxes applicable to other income (165) - (165) -
- ------------------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 83,652 (2,796) 83,652 2,796
- ------------------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 20,567 (2,796) 23,363 -
Interest on notes payable 943 - 943 -
Amortization of debt discount, premium and expense, net 1,446 - 1,446 -
Other interest charges 790 - 790 -
Distributions on preferred securities of subsidiary trust 2,796 - - 2,796
- ------------------------------------------------------------------------------------------------------------------------
Net interest charges 26,542 (2,796) 26,542 2,796
- ------------------------------------------------------------------------------------------------------------------------
NET INCOME 57,110 - 57,110 -
DIVIDENDS ON PREFERRED STOCK 2,005 - 2,005 -
- ------------------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $55,105 $ - $55,105 $ -
========================================================================================================================
</TABLE>
A-34
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER COMPANY AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
- -------------------------------------------------------------------------------------------------------------------
MISSISSIPPI MISSISSIPPI MISSISSIPPI
Consolidated Eliminations CORPORATE TRUST I
- -------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C>
Net Income $ 57,110 $ - 57,110 $ -
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization 51,517 - 51,517 -
Deferred income taxes, net 11,620 - 11,620 -
Other, net (12,175) - (12,175) -
Change in current assets and liabilities -
Receivables, net (5,486) - (5,486) -
Inventories (5,050) - (5,050) -
Payables (389) - (389) -
Taxes accrued (2,457) - (2,457) -
Other (1,604) - (1,604) -
- --------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 93,086 - 93,086 -
- --------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Gross property additions (68,231) - (68,231) -
Other (324) - (324) -
- --------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (68,555) - (68,555) -
- --------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Capital contributions 85 - 85 -
Pollution control bonds 13,520 - 13,520 -
Other long-term debt 90,000 - 90,000 -
Retirements--
Preferred stock (87) - (87) -
First mortgage bonds (75,000) - (75,000) -
Pollution control bonds (13,020) - (13,020) -
Increase (decrease) in notes payable, net 13,000 - 13,000 -
Payment of common stock dividends (51,700) - (51,700) -
Payment of preferred stock dividends (2,005) - (2,005) -
Miscellaneous (2,429) - (2,429) -
- --------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS (27,636) - (27,636) -
- --------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS (3,105) - (3,105) -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD 4,432 - 4,432 -
- --------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ 1,327 $ - $ 1,327 $ -
==============================================================================================================
</TABLE>
A-35
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER COMPANY AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1997
(in thousands)
MISSISSIPPI MISSISSIPPI MISSISSIPPI
Consolidated Eliminations CORPORATE TRUST I
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
UTILITY PLANT $1,020,672 $ - $1,020,672 $ -
- -------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 979 (37,164) 2,061 36,082
- -------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents 1,327 - 1,327 -
Receivables -
Customer accounts receivable 29,829 - 29,829 -
Regulatory clauses under recovery 8,042 - 8,042 -
Other accounts and notes receivable 12,495 - 12,495 -
Affiliated companies 10,946 - 10,946 -
Accumulated provision for uncollectible accts (621) - (621) -
Fossil fuel stock, at average cost 16,418 - 16,418 -
Materials and supplies, at average cost 18,735 - 18,735 -
Current portion of accumulated deferred income taxes 4,248 - 4,248 -
Prepayments 1,651 - 1,651 -
Vacation pay deferred 4,717 - 4,717 -
- -------------------------------------------------------------------------------------------------------------
TOTAL 107,787 - 107,787 -
- -------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Debt expense and loss, being amortized 13,713 - 13,713 -
Deferred charges related to income taxes 22,697 - 22,697 -
Long-term notes receivable 2,072 - 2,072 -
Workforce Reduction Plan 12,748 - 12,748 -
Miscellaneous 8,937 - 8,937 -
- -------------------------------------------------------------------------------------------------------------
TOTAL 60,167 - 60,167 -
- -------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $1,189,605 $(37,164) $1,190,687 $36,082
============================================================================================================
</TABLE>
A-36
<PAGE>
<TABLE>
<CAPTION>
MISSISSIPPI POWER COMPANY AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1997
(in thousands)
MISSISSIPPI MISSISSIPPI MISSISSIPPI
Consolidated Eliminations CORPORATE TRUST I
- -------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C> <C>
Common Stock Equity $ 391,231 $ (1,082) $ 391,231 $ 1,082
Preferred Stock 31,809 - 31,809 -
Company obligated mandatorily
redeemable preferred securities 35,000 - - 35,000
Long-term debt 292,744 (36,082) 328,826 -
- -------------------------------------------------------------------------------------------------------
TOTAL 750,784 (37,164) 751,866 36,082
- -------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Long-term debt due within one year 50,020 - 50,020 -
Notes payable 13,000 - 13,000 -
Accounts payable 60,313 - 60,313 -
Customer deposits 3,272 - 3,272 -
Taxes accrued 32,503 - 32,503 -
Interest accrued 2,955 - 2,955 -
Miscellaneous 11,753 - 11,753 -
- -------------------------------------------------------------------------------------------------------
TOTAL 173,816 - 173,816 -
- -------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes 143,852 - 143,852 -
Accumulated deferred investment tax credits 25,913 - 25,913 -
Deferred credits related to income taxes 37,277 - 37,277 -
Postretirement benefits other than pension 25,869 - 25,869 -
Accumulated provision for property damage 910 - 910 -
Workforce Reduction Plan 13,051 - 13,051 -
Miscellaneous 18,133 - 18,133 -
- -------------------------------------------------------------------------------------------------------
TOTAL 265,005 - 265,005 -
- -------------------------------------------------------------------------------------------------------
-
TOTAL CAPITALIZATION AND LIABILITIES $1,189,605 $(37,164) $ 1,190,687 $ 36,082
=======================================================================================================
</TABLE>
A-37
<PAGE>
<TABLE>
<CAPTION>
SAVANNAH ELECTRIC AND POWER COMPANY AND SUBSIDIARY
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
SAVANNAH SAVANNAH SAVANNAH
Consolidated Eliminations CORPORATE TRUST I
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL OPERATING REVENUES $ 254,455 $ - $ 254,455 $ -
- ----------------------------------------------------------------------------------------------------------------
OPERATING EXPENSES:
Operation --
Fuel 53,021 - 53,021 -
Purchased power from non-affiliates 9,460 - 9,460 -
Purchase power from affiliates 35,687 - 35,687 -
Other 49,055 - 49,055 -
Maintenance 18,711 - 18,711 -
Depreciation and amortization 22,032 - 22,032 -
Taxes other than income taxes 12,342 - 12,342 -
Federal and state income taxes 16,335 - 16,335 -
- -----------------------------------------------------------------------------------------------------------------
Total operating expenses 216,643 - 216,643 -
- -----------------------------------------------------------------------------------------------------------------
OPERATING INCOME 37,812 - 37,812 -
OTHER INCOME (EXPENSE):
Allowance for equity funds used during construction 83 - 83 -
Interest income 384 (172) 384 172
Other, net (1,781) - (1,781) -
Income taxes applicable to other income 1,234 - 1,234 -
- ----------------------------------------------------------------------------------------------------------------
INCOME BEFORE INTEREST CHARGES 37,732 (172) 37,732 172
- ----------------------------------------------------------------------------------------------------------------
INTEREST CHARGES:
Interest on long-term debt 10,383 (172) 10,555 -
Allowance for debt funds used during construction (133) - (133) -
Interest on notes payable 278 - 278 -
Amortization of debt discount, premium and expense, net 853 - 853 -
Distributions on preferred securities of subsidiary trust 167 - - 167
Other interest charges 474 - 474 -
- ---------------------------------------------------------------------------------------------------------------
Net interest charges 12,022 (172) 12,027 167
- ---------------------------------------------------------------------------------------------------------------
NET INCOME 25,710 - 25,705 5
DIVIDENDS ON PREFERRED STOCK 2,066 - 2,066 -
- ---------------------------------------------------------------------------------------------------------------
NET INCOME AFTER DIVIDENDS ON PREFERRED STOCK $ 23,644 $ - $ 23,639 $ 5
===============================================================================================================
</TABLE>
A-38
<PAGE>
<TABLE>
<CAPTION>
SAVANNAH ELECTRIC AND POWER COMPANY AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1998
(in thousands)
- --------------------------------------------------------------------------------------------------------------------------
SAVANNAH SAVANNAH SAVANNAH
Consolidated Eliminations CORPORATE TRUST I
- --------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C>
Net Income $25,710 $ - $ 25,705 $ 5
Adjustments to reconcile consolidated net income to net cash
provided by operating activities -
Depreciation and amortization 23,531 - 23,531 -
Deferred income taxes and investment tax credits, net 7,011 - 7,011 -
Allowance for equity funds used during construction (83) - (83) -
Other, net (6) - (6) -
Change in current assets and liabilities -
Receivables, net (9,969) 5 (9,969) (5)
Inventories 705 - 705 -
Payables 470 (5) 475 -
Taxes accrued (434) - (434) -
Other (4,331) - (4,331) -
- ------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 42,604 - 42,604 -
- ------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Gross property additions (18,071) - (18,071) -
Other 1,617 42,474 380 (41,237)
- ------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR INVESTING ACTIVITIES (16,454) 42,474 (17,691) (41,237)
- ------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES AND CAPITAL CONTRIBUTIONS
Proceeds--
Common Securities - (1,237) - 1,237
Preferred securities 40,000 - - 40,000
Other long-term debt 30,000 (41,237) 71,237 -
Retirements--
Preferred stock (35,000) - (35,000) -
First mortgage bonds (30,000) - (30,000) -
Other long-term debt (478) - (478) -
Payment of common stock dividends (23,500) - (23,500) -
Payment of preferred stock dividends (2,556) - (2,556) -
Miscellaneous (4,798) - (4,798) -
- ------------------------------------------------------------------------------------------------------------------------
NET CASH USED FOR FINANCINGS (26,332) (42,474) (25,095) 41,237
- ------------------------------------------------------------------------------------------------------------------------
NET INC (DEC) IN CASH AND TEMPORARY CASH INVESTMENTS (182) - (182) -
CASH AND TEMPORARY CASH INVESTMENTS, BEG OF PERIOD 6,144 - 6,144 -
- ------------------------------------------------------------------------------------------------------------------------
CASH AND TEMPORARY CASH INVESTMENTS, END OF PERIOD $ 5,962 $ - $ 5,962 $ -
========================================================================================================================
</TABLE>
A-39
<PAGE>
<TABLE>
<CAPTION>
SAVANNAH ELECTRIC AND POWER COMPANY AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
SAVANNAH SAVANNAH SAVANNAH
Consolidated Eliminations CORPORATE TRUST I
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
UTILITY PLANT $ 442,942 $ - $442,942 $ -
- ----------------------------------------------------------------------------------------------------------------------------
OTHER PROPERTY AND INVESTMENTS 1,420 (42,474) 2,657 41,237
- ----------------------------------------------------------------------------------------------------------------------------
CURRENT ASSETS
Cash and cash equivalents 5,962 - 5,962 -
Receivables -
Customer accounts receivable 18,030 - 18,030 -
Other accounts and notes receivable 3,543 (5) 3,543 5
Affiliated companies 1,388 - 1,388 -
Accumulated provision for uncollectible accts (284) - (284) -
Fuel cost under recovery 17,628 - 17,628 -
Fossil fuel stock, at average cost 4,984 - 4,984 -
Materials and supplies, at average cost 6,496 - 6,496 -
Prepayments 4,772 - 4,772 -
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL 62,519 (5) 62,519 5
- ----------------------------------------------------------------------------------------------------------------------------
DEFERRED CHARGES
Debt expense, being amortized 3,554 - 3,554 -
Deferred charges related to income taxes 17,130 - 17,130 -
Premium on reacquired debt, being amortized 8,570 - 8,570 -
Prepaid pension costs 3,281 - 3,281 -
Cash surrender value of life insurance for deferred
compensation plans 14,179 - 14,179 -
Miscellaneous 2,204 - 2,204 -
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL 48,918 - 48,918 -
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 555,799 $(42,479) $557,036 $ 41,242
============================================================================================================================
</TABLE>
A-40
<PAGE>
<TABLE>
<CAPTION>
::
SAVANNAH ELECTRIC AND POWER COMPANY AND SUBSIDIARY
CONSOLIDATED BALANCE SHEET
AT DECEMBER 31, 1998
(in thousands)
SAVANNAH SAVANNAH SAVANNAH
Consolidated Eliminations CORPORATE TRUST I
- -----------------------------------------------------------------------------------------------------------------------
CAPITALIZATION
<S> <C> <C> <C> <C>
Common Stock Equity $175,865 $ (1,237) $ 175,860 $ 1,242
Company obligated mandatorily
redeemable preferred securities 40,000 - - 40,000
Long-term debt 163,443 (41,237) 204,680 -
- -----------------------------------------------------------------------------------------------------------------------
TOTAL 379,308 (42,474) 380,540 41,242
- -----------------------------------------------------------------------------------------------------------------------
CURRENT LIABILITIES
Amount of securities due within one year 689 - 689 -
Accounts payable 15,847 - 15,847 -
Customer deposits 5,224 - 5,224 -
Taxes accrued 5,358 - 5,358 -
Interest accrued 3,815 (5) 3,820 -
Vacation pay accrued 1,978 - 1,978 -
Miscellaneous 6,700 - 6,700 -
- -----------------------------------------------------------------------------------------------------------------------
TOTAL 39,611 (5) 39,616 -
- -----------------------------------------------------------------------------------------------------------------------
DEFERRED CREDITS AND OTHER LIABILITIES
Accumulated deferred income taxes 82,778 - 82,778 -
Accumulated deferred investment tax credits 11,943 - 11,943 -
Deferred credits related to income taxes 21,349 - 21,349 -
Deferred compensation plans 9,788 - 9,788 -
Postretirement benefits 6,434 - 6,434 -
Miscellaneous 4,588 - 4,588 -
- -----------------------------------------------------------------------------------------------------------------------
TOTAL 136,880 - 136,880 -
- -----------------------------------------------------------------------------------------------------------------------
TOTAL CAPITALIZATION AND LIABILITIES $555,799 $(42,479) $557,036 $ 41,242
=======================================================================================================================
</TABLE>
A-41
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings):
Exhibit
Number Description of Exhibit
<S> <C>
A-1 Annual Report of SOUTHERN on Form 10-K for the year ended December 31,
1998. (File No. 1-3526.)
A-2 Annual Report of ALABAMA on Form 10-K for the year ended December 31,
1998. (File No. 1-3164.)
A-3 Annual Report of GEORGIA on Form 10-K for the year ended December 31,
1998. (File No. 1-6468.)
A-4 Annual Report of GULF on Form 10-K for the year ended December 31, 1998.
(File No. 0-2429.)
A-5 Annual Report of MISSISSIPPI on Form 10-K for the year ended December 31,
1998. (File No. 0-6849.)
A-6 Annual Report of SAVANNAH on Form 10-K for the year ended December 31,
1998. (File No. 1-5072.)
A-7 Annual Report on Form U-13-60 for SEI for the year ended December 31, 1998.
B-1 Composite Certificate of Incorporation of SOUTHERN, reflecting all
amendments thereto through January 5, 1994. (Designated in Registration
No. 33-3546, as Exhibit 4(a), in Certificate of Notification, File No.
70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181,
as Exhibit A.)
B-2 By-laws of SOUTHERN as amended effective October 21, 1991, and as presently
in effect. (Designated in Form U-1, File No. 70-8181, as Exhibit A-2.)
B-3 Charter of ALABAMA and amendments thereto through August 10, 1998.
(Designated in Registration No. 2-59634 as Exhibit 2(b), in Registration
No. 2-60209 as Exhibit 2(c), in Registration No. 2-60484 as Exhibit 2(b),
in Registration No. 2-70838 as Exhibit 4(a)-2, in Registration No. 2-85987
as Exhibit 4(a)-2, in Registration No. 33-25539 as Exhibit 4(a)-2, in
Registration No. 33-43917 as Exhibit 4(a)-2, in Form 8-K dated February 5,
1992, File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated July 8, 1992,
File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated October 27, 1993,
File No. 1-3164, as Exhibits 4(a) and 4(b), in Form 8-K dated November 16,
1993, File No. 1-3164, as Exhibit 4(a), in Certificate of Notification,
File No. 70-8191, as Exhibit A, in Form 10-K for the year ended December
31, 1997, File No. 1-3164, as Exhibit 3(b)2 and in Form 8-K dated August
10, 1998, File No. 1-3164, as Exhibit 4.4.)
B-4 By-laws of ALABAMA as amended effective July 23, 1993, and as presently in
effect. (Designated in Form U-1, File No. 70-8191, as Exhibit A-2.)
</TABLE>
A-42
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-5 Charter of GEORGIA and amendments thereto through January 26, 1998.
(Designated in Registration No. 2-63392 as Exhibit 2(a)-2, in Registration
No. 2-78913 as Exhibits 4(a)-(2) and 4(a)-(3), in Registration No. 2-93039
as Exhibit 4(a)-(2), in Registration No. 2-96810 as Exhibit 4(a)(2), in
Registration No. 33-141 as Exhibit 4(a)(2), in Registration No. 33-1359 as
Exhibit 4(a)(2), in Registration No. 33-5405 as Exhibit 4(b)(2), in
Registration No. 33-14367 as Exhibits 4(b)-2 and 4(b)-3, in Registration
No. 33-22504 as Exhibits 4(b)-(2), 4(b)-(3) and 4(b)-(4), in GEORGIA's Form
10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibits
4(a)(2) and 4(a)(3), in Registration No. 33-48895, as Exhibits 4(b)-(2) and
4(b)-(3), in Form 8-K dated December 10, 1992, File No. 1-6468, as Exhibit
4(b), in Form 8-K dated June 17, 1993, File No. 1-6468, as Exhibit 4(b), in
Form 8-K dated October 20, 1993, File No. 1-6468, as Exhibit 4(b) and in
Form 10-K for the year ended December 31, 1997, File No. 1-6468, as Exhibit
3(c)2.)
B-6 By-laws of GEORGIA as amended effective July 18,
1990, and as presently in effect. (Designated in
GEORGIA's Form 10-K for the year ended December
31, 1990, File No. 1-6468, as Exhibit 3.)
B-7 Restated Articles of Incorporation of GULF and amendments thereto through
January 28, 1998. (Designated in Registration No. 33-43739 as Exhibit
4(b)-(1), in Form 8-K dated January 15, 1992, File No. 0-2429, as Exhibit
1(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit
4(b)-2, in Form 8-K dated September 22, 1993, File No. 0-2429, as Exhibit
4, in Form 8-K dated November 3, 1993, File No. 0-2429, as Exhibit 4 and in
Form 10-K for the year ended December 31, 1997, File No. 0-2429, as Exhibit
3(d)2.)
B-8 By-laws of GULF as amended effective July 26, 1996, and as presently in
effect. (Designated in Form U-1, File No. 70-8949, as Exhibit A-2(c).)
B-9 Articles of incorporation of MISSISSIPPI, articles of merger of Mississippi
Power Company (a Maine corporation) into MISSISSIPPI and articles of
amendment to the articles of incorporation of MISSISSIPPI through December
31, 1997. (Designated in Registration No. 2-71540 as Exhibit 4(a)-1, in
Form U5S for 1987, File No. 30-222-2, as Exhibit B-10, in Registration No.
33-49320 as Exhibit 4(b)-1, in Form 8-K dated August 5, 1992, File No.
0-6849, as Exhibits 4(b)-2 and 4(b)-3 in Form 8-K dated August 4, 1993,
File No. 0-6849, as Exhibit 4(b)-3, in Form 8-K dated August 18, 1993, File
No. 0-6849, as Exhibit 4(b)-3 and in Form 10-K for the year ended December
31, 1997, File No. 0-6849, as Exhibit 3(e)2.)
B-10 By-laws of MISSISSIPPI as amended effective April 2, 1996, and as presently
in effect. (Designated in Form U5S for 1995, File No. 30-222-2, as Exhibit
B-10.)
B-11 Charter of SAVANNAH and amendments thereto through December 2, 1998.
(Designated in Registration No. 33-25183 as Exhibit 4(b)-(1), in
Registration No. 33-45757 as Exhibit 4(b)-(2), in Form 8-K dated November
9, 1993, File No. 1-5072 as Exhibit 4(b) and in Form 10-K for the year
ended December 31, 1998, File No. 1-5072, as Exhibit 3(f)2.)
</TABLE>
A-43
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-12 By-laws of SAVANNAH as amended effective February
16, 1994, and as presently in effect. (Designated
in SAVANNAH's Form 10-K for the year ended
December 31, 1993, File No. 1-5072, as Exhibit
3(f)2.)
B-13 SEGCO Certificate of Incorporation as amended to date, last amended
November 29, 1966. (Designated in Forms U-1, File No. 70-3480, as Exhibit
A-5, File No. 70-3630, as Exhibit A-6, File Nos. 70-3738 and 70-3842, as
Exhibit A-8(b); Registration No. 2-18084 as Exhibit 3(a)-2 and First
Certificate of Notification, File No. 70-3945, as Exhibit A.)
B-14 SEGCO By-laws as amended to date, last amended
July 10, 1986. (Designated in Form U5S for the
year ended December 31, 1990, as Exhibit B-14.)
B-15 SCS Certificate of Incorporation as amended. (Designated in Form U-1, File
No. 70-3573, as Exhibit A-1; in Form U-1, File No. 70-3833, as Exhibit A-2;
Form U5S for 1962, File No. 30-222-2, as Exhibit A-17; and Form U5S for
1985, File No. 30-222-2, as Exhibit B-13(b).)
B-16 SCS By-laws as amended to date, last amended October 19, 1998.
B-17 Alabama Property Company Certificate of Incorporation. (Designated in Form
U-5B, File No. 30-115, as Exhibit B-29.)
B-18 Alabama Property Company By-laws. (Designated in Form U-5B, File No.
30-115, as Exhibit B-30.)
B-19 Piedmont-Forrest Corporation Articles of Incorporation and amendments
thereto through August 31, 1987. (Designated in Form U-1, File No.
70-6135, as Exhibit A-1 and in Form U5S for 1987, File No. 30-222-2, as
Exhibit B-21.)
B-20 Piedmont-Forrest Corporation By-laws as presently in effect. (Designated
in Form U-1, File No. 70-6135, as Exhibit A-2.)
B-21 Articles of Incorporation of Southern Energy Resources, Inc. and amendments
thereto. (Designated in Form U5S for 1982, File No. 30-222-2, as Exhibit
A-19, in Form U5S for 1987, File No. 30-222-2, as Exhibit B-24 and in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-22.)
B-22 Certificate of Amendment of the Certificate of Incorporation of Southern
Energy Resources, Inc. dated December 30, 1997.
B-23 By-laws of Southern Energy Resources, Inc. as amended to date, last amended
October 19, 1998.
B-24 Articles of Incorporation of MESH and amendments thereto. (Designated in
Form U5S for 1995, File No. 30-222-2, as Exhibit B-23.)
</TABLE>
A-44
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-25 By-laws of MESH. (Designated in Form U5S for 1995, File No. 30-222-2, as
Exhibit B-24.)
B-26 Articles of Incorporation of Energy Solutions and amendments thereto
through March 25, 1993. (Designated in Form U5S for 1985, File No.
30-222-2, as Exhibit B-23 , in Form U5S for 1987, File No. 30-222-2, as
Exhibit B-27 and in Form U5S for 1993, File No. 30-222-2, as Exhibit B-25.)
B-27 By-laws of Energy Solutions.
B-28 By-laws of SOUTHERN NUCLEAR as amended to date, last amended May 21, 1991.
(Designated in Form U5S for 1991, File No. 30-222-2, as Exhibit B-27 and in
Form U5S for 1997, File No. 30-222-2, as Exhibit B-28.)
B-29 Articles of Incorporation of SOUTHERN NUCLEAR and amendment thereto through
June 14, 1991. (Designated in Form U5S for 1991, File No. 30-222-2, as
Exhibit B-28.)
B-30 Certificate of Incorporation of SERC. (Designated in Form U5S for 1993,
File No. 30-222-2, as Exhibit B-30.)
B-31 By-laws of SERC. (Designated in Form U5S for 1993, File No. 30-222-2, as
Exhibit B-31.)
B-32 Certificate of Incorporation of SOUTHERN COMMUNICATIONS. (Designated in
Form U5S for 1994, File No. 30-222-2, as Exhibit B-31)
B-33 By-laws of SOUTHERN COMMUNICATIONS. (Designated in Form U5S for 1994, File
No. 30-222-2, as Exhibit B-32)
B-34 Certificate of Incorporation of Southern Energy, Inc.. (Designated in Form
U5S for 1993, File No. 30-222-2, as Exhibit B-32.)
B-35 Certificate of Amendment of the Certificate of Incorporation of Southern
Energy, Inc. dated December 30, 1997.
B-36 By-laws of Southern Energy, Inc.
B-37 Certificate of Incorporation of Southern Electric International - Europe,
Inc. and amendments thereto. (Designated in Form U5S for 1995, File No.
30-222-2, as Exhibit B-37.)
B-38 By-laws of Southern Electric International - Europe, Inc. (Designated in
Form U5S for 1995, File No. 30-222-2, as Exhibit B-38.)
B-39 Certificate of Incorporation of Southern Energy North America, Inc.
(Designated in Form U5S for 1993, File No. 30-222-2, as Exhibit B-38.)
</TABLE>
A-45
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-40 Certificate of Amendment of Certificate of Incorporation of Southern
Electric Wholesale Generators, Inc. changing name to Southern Energy North
America Inc. (Designated in Form U5S for 1996, File No. 30-222-2, as
Exhibit B-41.)
B-41 By-laws of Southern Energy North America, Inc. (Designated in Form U5S for
1993, File No. 30-222-2, as Exhibit B-39.)
B-42 Certificate of Incorporation of Southern Electric International Trinidad,
Inc. and amendments thereto. (Designated in Form U5S for 1995, File No.
30-222-2, as Exhibit B-43.)
B-43 By-laws of Southern Electric International Trinidad, Inc. (Designated in
Form U5S for 1995, File No. 30-222-2, as Exhibit B-44.)
B-44 Articles of Organization of MESCO and amendments thereto. (Designated in
Form U5S for 1995, File No. 30-222-2, as Exhibit B-49.)
B-45 Operating Agreement of MESCO. (Designated in Form U5S for 1995, File No.
30-222-2, as Exhibit B-50.)
B-46 Certificate of Incorporation of Southern Electric, Inc. (Designated in
Form U5S for 1994, File No. 30-222-2, as Exhibit B-51)
B-47 By-laws of Southern Electric, Inc. (Designated in Form U5S for 1994, File
No. 30-222-2, as Exhibit B-52)
B-48 Certificate of Incorporation of GEORGIA POWER HOLDINGS. (Designated in
Form U5S for 1994, File No. 30-222-2, as Exhibit B-53)
B-49 By-laws of GEORGIA POWER HOLDINGS. (Designated in Form U5S for 1994, File
No. 30-222-2, as Exhibit B-54)
B-50 Certificate of Limited Partnership of GEORGIA CAPITAL. (Designated in Form
U5S for 1994, File No. 30-222-2, as Exhibit B-55)
B-51 Amended and Restated Agreement of Limited Partnership of GEORGIA CAPITAL.
(Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-56)
B-52 Action of General Partner of GEORGIA CAPITAL dated December 9, 1994.
(Designated in Form U5S for 1994, File No. 30-222-2, as Exhibit B-57)
B-53 Certificate of Incorporation of Southern Energy International, Inc. and
amendments thereto. (Designated in Form U5S for 1995, File No. 30-222-2,
as Exhibit B-58 and in Form U5S for 1997, File No. 30-222-2, as Exhibit
B-61)
</TABLE>
A-46
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-54 By-laws of Southern Energy International, Inc. (Designated in Form U5S for
1996, File No. 30-222-2, as Exhibit B-62.)
B-55 Certificate of Incorporation of Southern Energy - Newco 2, Inc. and
amendments thereto. (Designated in Form U5S for 1995, File No. 30-222-2,
as Exhibit B-60 and in Form U5S for 1996, File No. 30-222-2, as Exhibit
B-64.)
B-56 By-laws of Southern Energy - Newco 2, Inc. (Designated in Form U5S for
1996, File No. 30-222-2, as Exhibit B-65.)
B-57 By-Laws of Southern Energy Finance Company, Inc.
B-58 Certificate of Incorporation of EPZ Lease, Inc. (Designated in Form U5S for
1996, File No. 30-222-2, as Exhibit B-67.)
B-59 By-laws of EPZ Lease, Inc.
B-60 Certificate of Formation of EPZ Lease, L.L.C. (Designated in Form U5S for
1996, File No. 30-222-2, as Exhibit B-69.)
B-61 Certificate of Formation of EPZ Lease Holding A, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-70.)
B-62 Articles of Organization of EPZ Lease Holding A, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-71.)
B-63 Certificate of Formation of EPZ Lease Holding B, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-72.)
B-64 Articles of Organization of EPZ Lease Holding B, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-73.)
B-65 Certificate of Formation of EPZ Lease Holding C, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-74.)
B-66 Articles of Organization of EPZ Lease Holding C, L.L.C. (Designated in Form
U5S for 1996, File No. 30-222-2, as Exhibit B-75.)
B-67 Certificate of Incorporation of Southern Energy Ventures, Inc.
B-68 By-laws of Southern Energy Ventures, Inc.
B-69 Certificate of Incorporation of Southern Energy Southwest Investments, Inc.
B-70 By-laws of Southern Energy Southwest Investments, Inc.
B-71 Certificate of Incorporation of Southern Energy Texas (G.P.), Inc.
</TABLE>
A-47
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-72 By-laws of Southern Energy Texas (G.P.), Inc.
B-73 Certificate of Incorporation of Southern Energy Hudson Valley Investments,
LTD.
B-74 By-Laws of Southern Energy Hudson Valley Investments, LTD.
B-75 Certificate of Incorporation of Southern Energy New York G.P., Inc.
B-76 By-Laws of Southern Energy New York G.P., Inc.
B-77 Certificate of Limited Partnership of SEI Texas, L.P.
B-78 Certificate of Incorporation of Southern Energy California, Inc.
B-79 By-Laws of Southern Energy California, Inc.
B-80 Certificate of Formation of Southern Energy California, L.L.C.
B-81 Certificate of Incorporation of Southern Energy Bay Area Investments, Inc.
B-82 By-Laws of Southern Energy Bay Area Investments, Inc.
B-83 By-Laws of SEI State Line Inc.
B-84 Certificate of Incorporation of Southern Energy Europe Investments, Inc.
B-85 By-Laws of Southern Energy Europe Investments, Inc.
B-86 Certificate of Formation of Southern Energy Lovett, L.L.C.
B-87 Certificate of Formation of Southern Energy Bowline, L.L.C.
B-88 Certificate of Incorporation of Southern Energy Netherlands, LTD. and
amendments thereto.
B-89 By-Laws of Southern Energy Netherlands, LTD.
B-90 Certificate of Incorporation of Southern Energy Netherlands Management
Company, Inc.
B-91 By-Laws of Southern Energy Netherlands Management Company, Inc.
B-92 By-Laws of Southern Energy - Asia, Inc.
B-93 By-Laws of Powercall, Inc.
B-94 By-Laws of Southern Telecom, Inc.
</TABLE>
A-48
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
B-95 Certificate of Formation of Southern Energy Canal III, L.L.C.
B-96 Certificate of Limited Partnership of Southern Energy Central Texas, L.P.
B-97 Certificate of Formation of Southern Energy NY-GEN, L.L.C.
C-1 Subordinated Note Indenture dated as of February 1, 1997, among SOUTHERN,
Southern Company Capital Funding, Inc. and Bankers Trust Company, as
Trustee, and indentures supplemental thereto dated as of February 4, 1997.
(Designated in Registration Nos. 333-28349 as Exhibits 4.1 and 4.2 and
333-28355 as Exhibit 4.2.)
C-2 Subordinated Note Indenture dated as of June 1, 1997, among SOUTHERN,
Southern Company Capital Funding, Inc. and Bankers Trust Company, as
Trustee, and indentures supplemental thereto through of December 23, 1998.
(Designated in Form 10-K for the year ended December 31, 1997, File No.
1-3526, as Exhibit 4(a)2, in Form 8-K dated June 18, 1998, File No. 1-3526,
as Exhibit 4.2 and in Form 8-K dated December 18, 1998, File No. 1-3526, as
Exhibit 4.4.)
C-3 Indenture dated as of January 1, 1942, between ALABAMA and The Chase
Manhattan Bank (formerly Chemical Bank), as Trustee, and indentures
supplemental thereto through December 1, 1994. (Designated in Registration
Nos. 2-59843 as Exhibit 2(a)-2, 2-60484 as Exhibits 2(a)-3 and 2(a)-4,
2-60716 as Exhibit 2(c), 2-67574 as Exhibit 2(c), 2-68687 as Exhibit 2(c),
2-69599 as Exhibit 4(a)-2, 2-71364 as Exhibit 4(a)-2, 2-73727 as Exhibit
4(a)-2, 33-5079 as Exhibit 4(a)-2, 33-17083 as Exhibit 4(a)-2, 33-22090 as
Exhibit 4(a)-2, in ALABAMA's Form 10-K for the year ended December 31,
1990, File No. 1-3164, as Exhibit 4(c), in Registration Nos. 33-43917 as
Exhibit 4(a)-2, 33-45492 as Exhibit 4(a)-2, 33-48885 as Exhibit 4(a)-2,
33-48917 as Exhibit 4(a)-2, in Form 8-K dated January 20, 1993, File No.
1-3436, as Exhibit 4(a)-3, in Form 8-K dated February 17, 1993, File No.
1-3436, as Exhibit 4(a)-3, in Form 8-K dated March 10, 1993, File No.
1-3436, as Exhibit 4(a)-3, in Certificate of Notification, File No.
70-8069, as Exhibits A and B, in Form 8-K dated June 24, 1993, File No.
1-3436, as Exhibit 4, in Certificate of Notification, File No. 70-8069, as
Exhibit A, in Form 8-K dated November 16, 1993, File No. 1-3436, as Exhibit
4(b), in Certificate of Notification, File No. 70-8069, as Exhibits A and
B, in Certificate of Notification, File No. 70-8069, as Exhibit A, in
Certificate of Notification, File No. 70-8069, as Exhibit A and in Form 8-K
dated November 30, 1994, File No. 1-3436, as Exhibit 4.)
C-4 Subordinated Note Indenture dated as of January
1, 1996, between ALABAMA and The Chase Manhattan
Bank (formerly Chemical Bank), as Trustee, and
indenture supplemental thereto dated as of
January 1, 1996. (Designated in Certificate of
Notification, File No. 70-8461, as Exhibits E and
F.)
</TABLE>
A-49
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
C-5 Subordinated Note Indenture dated as of January
1, 1997, between ALABAMA and The Chase Manhattan
Bank, as Trustee, and indentures supplemental
thereto through February 25, 1999. (Designated in
Form 8-K dated January 9, 1997, File No. 1-3164,
as Exhibits 4.1 and 4.2 and in Form 8-K dated
February 18, 1999, File No. 1-3164, as Exhibit
4.2.)
C-6 Senior Note Indenture dated as of December 1, 1997, between ALABAMA and The
Chase Manhattan Bank, as Trustee, and indentures supplemental thereto
through November 17, 1998. (Designated in Form 8-K dated December 4, 1997,
File No. 1-3164, as Exhibits 4.1 and 4.2, in Form 8-K dated February 20,
1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated April 17, 1998,
File No. 1-3164, as Exhibit 4.2, in Form 8-K dated August 11, 1998, File
No. 1-3164, as Exhibit 4.2, in Form 8-K dated September 8, 1998, File No.
1-3164, as Exhibit 4.2, in Form 8-K dated September 16, 1998, File No.
1-3164, as Exhibit 4.2, in Form 8-K dated October 7, 1998, File No. 1-3164,
as Exhibit 4.2, in Form 8-K dated October 28, 1998, File No. 1-3164, as
Exhibit 4.2 and in Form 8-K dated November 12, 1998, File No. 1-3164, as
Exhibit 4.2 .)
C-7 Indenture dated as of March 1, 1941, between GEORGIA and The Chase
Manhattan Bank (formerly Chemical Bank), as Trustee, and indentures
supplemental thereto dated as of March 1, 1941, March 3, 1941 (3
indentures), March 6, 1941 (139 indentures), March 1, 1946 (88 indentures)
and December 1, 1947, through October 15, 1995. (Designated in
Registration Nos. 2-4663 as Exhibits B-3 and B-3(a), 2-7299 as Exhibit
7(a)-2, 2-61116 as Exhibit 2(a)-3 and 2(a)-4, 2-62488 as Exhibit 2(a)-3,
2-63393 as Exhibit 2(a)-4, 2-63705 as Exhibit 2(a)-3, 2-68973 as Exhibit
2(a)-3, 2-70679 as Exhibit 4(a)-(2), 2-72324 as Exhibit 4(a)-2, 2-73987 as
Exhibit 4(a)-(2), 2-77941 as Exhibits 4(a)-(2) and 4(a)-(3), 2-79336 as
Exhibit 4(a)-(2), 2-81303 as Exhibit 4(a)-(2), 2-90105 as Exhibit 4(a)-(2),
33-5405 as Exhibit 4(a)-(2), 33-14367 as Exhibits 4(a)-(2) and 4(a)-(3),
33-22504 as Exhibits 4(a)-(2), 4(a)-(3) and 4(a)-(4), 33-32420 as Exhibit
4(a)-(2), 33-35683 as Exhibit 4(a)-(2), in GEORGIA's Form 10-K for the
year ended December 31, 1990, File No. 1-6468, as Exhibit 4(a)(3), in Form
10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibit
4(a)(5), in Registration No. 33-48895 as Exhibit 4(a)-(2), in Form 8-K
dated August 26, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-K
dated September 9, 1992, File No. 1-6468, as Exhibits 4(a)-(3) and
4(a)-(4), in Form 8-K dated September 23, 1992, File No. 1-6468, as Exhibit
4(a)-(3), in Form 8-A dated October 12, 1992, as Exhibit 2(b), in Form 8-K
dated January 27, 1993, File No. 1-6468, as Exhibit 4(a)-(3), in
Registration No. 33-49661 as Exhibit 4(a)-(2), in Form 8-K dated July 26,
1993, File No. 1-6468, as Exhibit 4, in Certificate of Notification, File
No. 70-7832, as Exhibit M, in Certificate of Notification, File No.
70-7832, as Exhibit C, in Certificate of Notification, File No. 70-7832, as
Exhibits K and L, in Certificate of Notification, File No. 70-8443, as
Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C,
in Certificate of Notification, File No. 70-8443, as Exhibit E, in
Certificate of Notification, File No. 70-8443, as Exhibit E, in Certificate
of Notification, File No. 70-
</TABLE>
A-50
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
8443, as Exhibit E, in GEORGIA's Form 10-K for
the year ended December 31, 1994, File No.
1-6468, as Exhibits 4(c)2 and 4(c)3, in
Certificate of Notification, File No. 70-8443, as
Exhibit C, in Certificate of Notification, File
No. 70-8443, as Exhibit C, in Form 8-K dated May
17, 1995, File No. 1-6468, as Exhibit 4 and in
GEORGIA's Form 10-K for the year ended December
31, 1995, File No. 1-6468, as Exhibits 4(c)2,
4(c)3, 4(c)4, 4(c)5 and 4(c)6.)
C-8 Indenture dated as of June 1, 1994, between
GEORGIA and Trust Company Bank, as Trustee and
indenture supplemental thereto dated December 15,
1994. (Designated in Certificate of Notification,
File No. 70-8461 as Exhibits E and F.)
C-9 Subordinated Note Indenture dated as of August 1,
1996, between GEORGIA and The Chase Manhattan
Bank, as Trustee, and indentures supplemental
thereto through January 1, 1997. (Designated in
Form 8-K dated August 21, 1996, File No. 1-6468,
as Exhibits 4.1 and 4.2 and in Form 8-K dated
January 9, 1997, File No. 1-6468, as Exhibit
4.2.)
C-10 Subordinated Note Indenture dated as of June 1,
1997, between GEORGIA and The Chase Manhattan
Bank, as Trustee, and indentures supplemental
thereto through February 25, 1999. (Designated in
Certificate of Notification, File No. 70-8461, as
Exhibits D and E and in Form 8-K dated February
17, 1999, File No. 1-6468, as Exhibit 4.4.)
C-11 Senior Note Indenture dated as of January 1,
1998, between GEORGIA and The Chase Manhattan
Bank, as Trustee, and indentures supplemental
thereto through March 9, 1999. (Designated in
Form 8-K dated January 21, 1998, File No. 1-6468,
as Exhibits 4.1 and 4.2, in Forms 8-K each dated
November 19, 1998, File No. 1-6468, as Exhibit
4.2 and in Form 8-K dated March 3, 1999, File No.
1-6468, as Exhibit 4.5.)
C-12 Indenture dated as of September 1, 1941, between GULF and The Chase
Manhattan Bank (formerly The Chase Manhattan Bank (National Association)),
as Trustee, and indentures supplemental thereto through November 1, 1996.
(Designated in Registration Nos. 2-4833 as Exhibit B-3, 2-62319 as Exhibit
2(a)-3, 2-63765 as Exhibit 2(a)-3, 2-66260 as Exhibit 2(a)-3, 33-2809 as
Exhibit 4(a)-2, 33-43739 as Exhibit 4(a)-2, in GULF's Form 10-K for the
year ended December 31, 1991, File No. 0-2429, as Exhibit 4(b), in Form 8-K
dated August 18, 1992, File No. 0-2429, as Exhibit 4(a)-3, in Registration
No. 33-50165 as Exhibit 4(a)-2, in Form 8-K dated July 12, 1993, File No.
0-2429, as Exhibit 4, in Certificate of Notification, File No. 70-8229, as
Exhibit A, in Certificate of Notification, File No. 70-8229, as Exhibits E
and F, in Form 8-K dated January 17, 1996, File No. 0-2429, as Exhibit 4,
in Certificate of Notification, File No. 70-8229, as Exhibit A, in
Certificate of Notification, File No. 70-8229, as Exhibit A and in Form 8-K
dated November 6, 1996, File No. 0-2429, as Exhibit 4.)
</TABLE>
A-51
<TABLE>
<CAPTION>
<PAGE>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
C-13 Subordinated Note Indenture dated as of January
1, 1997, between GULF and The Chase Manhattan
Bank, as Trustee, and indentures supplemental
thereto through January 1, 1998. (Designated in
Form 8-K dated January 27, 1997, File No. 0-2429,
as Exhibits 4.1 and 4.2, in Form 8-K dated July
28, 1997, File No. 0-2429, as Exhibit 4.2 and in
Form 8-K dated January 13, 1998, File No. 0-2429,
as Exhibit 4.2.)
C-14 Senior Note Indenture dated as of January 1,
1998, between GULF and The Chase Manhattan Bank,
as Trustee, and indenture supplemental thereto
dated as of June 24, 1998. (Designated in Form
8-K dated June 17, 1998, File No.
0-2429, as Exhibits 4.1 and 4.2.)
C-15 Indenture dated as of September 1, 1941, between MISSISSIPPI and Bankers
Trust Company, as Successor Trustee, and indentures supplemental thereto
through December 1, 1995. (Designated in Registration Nos. 2-4834 as
Exhibit B-3, 2-62965 as Exhibit 2(b)-2, 2-66845 as Exhibit 2(b)-2, 2-71537
as Exhibit 4(a)-(2), 33-5414 as Exhibit 4(a)-(2), 33-39833 as Exhibit
4(a)-2, in MISSISSIPPI's Form 10-K for the year ended December 31, 1991,
File No. 0-6849, as Exhibit 4(b), in Form 8-K dated August 5, 1992, File
No. 0-6849, as Exhibit 4(a)-2, in Second Certificate of Notification, File
No. 70-7941, as Exhibit I, in MISSISSIPPI's Form 8-K dated February 26,
1993, File No. 0-6849, as Exhibit 4(a)-2, in Certificate of Notification,
File No. 70-8127, as Exhibit A, in Form 8-K dated June 22, 1993, File No.
0-6849, as Exhibit 1, in Certificate of Notification, File No. 70-8127, as
Exhibit A, in Form 8-K dated March 8, 1994, File No. 0-6849, as Exhibit 4,
in Certificate of Notification, File No. 70-8127, as Exhibit C and in Form
8-K dated December 5, 1995, File No. 0-6849, as Exhibit 4.)
C-16 Subordinated Note Indenture dated as of February
1, 1997, between MISSISSIPPI and Bankers Trust
Company, as Trustee, and indenture supplemental
thereto dated as of February 1, 1997. (Designated
in Form 8-K dated February 20, 1997, File No.
0-6849, as Exhibits 4.1 and 4.2.)
C-17 Senior Note Indenture dated as of May 1, 1998
between MISSISSIPPI and Bankers Trust Company, as
Trustee and indentures supplemental thereto
through May 20, 1998. (Designated in Form 8-K
dated May 14, 1998, File No. 0-6849, as Exhibits
4.1, 4.2(a) and 4.2(b).)
C-18 Indenture dated as of March 1, 1945, between SAVANNAH and The Bank of New
York, as Trustee, and indentures supplemental thereto through May 1, 1996.
(Designated in Registration Nos. 33-25183 as Exhibit 4(a)-(1), 33-41496 as
Exhibit 4(a)-(2), 33-45757 as Exhibit 4(a)-(2), in SAVANNAH's Form 10-K for
the year ended December 31, 1991, File No. 1-5072, as Exhibit 4(b), in Form
8-K dated July 8, 1992, File No. 1-5072, as Exhibit 4(a)-3, in Registration
No. 33-50587 as Exhibit 4(a)-(2), in Form 8-K dated July 22, 1993, File No.
1-5072, as Exhibit 4, in Form 8-K dated May 18, 1995, File No. 1-5072, as
Exhibit 4 and in Form 8-K dated May 23, 1996, File No. 1-5072, as Exhibit
4.)
</TABLE>
A-52
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
C-19 Subordinated Note Indenture dated as of December
1, 1998, between SAVANNAH and The Bank of New
York, as Trustee, and indenture supplemental
thereto dated as of December 9, 1998. (Designated
in Form 8-K dated December 3, 1998, File No.
1-5072, as Exhibit 4.3 and 4.4.)
C-20 Senior Note Indenture dated as of March 1, 1998
between SAVANNAH and The Bank of New York, as
Trustee and indenture supplemental thereto dated
as of March 1, 1998. (Designated in Form 8-K
dated March 9, 1998, File No.
1-5072, as Exhibits 4.1 and 4.2.)
D-1 Income Tax Allocation Agreement and Amendments 1 through 55 thereto.
(Designated in Form U5S for 1981, File No. 30-222-2, as Exhibit A-21, in
Form U5S for 1982, File No. 30-222-2, as Exhibit A-22(b), in Form U5S for
1982, File No. 30-222-2, as Exhibit A-22(c), in Form U5S for 1983, File No.
30-222-2, as Exhibit D-1(d), in Form U5S for 1985, File No. 30-222-2, as
Exhibit D-1(e), in Amendment No. 1 to Form U5S for 1985, File No. 30-222-2,
as Exhibit D-1(f) in Form U5S for 1987, File No. 30-222-2, as Exhibit D-2,
in Form U5S for 1991, File No. 30-222-2, as Exhibit D-2 and in Form U5S for
1992, File No. 30-222-2, as Exhibit D-2, in Form U5S for 1991, File No.
30-222-2, as Exhibit D-2, in Form U5S for 1994, File No. 30-222-2, as
Exhibit D-2 and in Form U5S for 1995, File No. 30-222-2, as Exhibit D-2, as
Exhibit D-2, in Form U5S for 1994, File No. 30-222-2, as Exhibit D-2, in
Form U5S for 1996, File No. 30-222-2, as Exhibit D-2 and in Form U5S for
1997, File No. 30-222-2, as Exhibit D-2.)
D-2 Amendments 56 through 76 to Income Tax Allocation Agreement.
E-1 ALABAMA's, GEORGIA's, GULF's, MISSISSIPPI's, SCS's and SOUTHERN NUCLEAR's
personnel policies pertaining to employee loans. (Designated in Form U5S
for 1985, File No. 30-222-2, as Exhibits E-1, E-2, E-3, E-4 and E-5, in
Form U5S, File No. 30-222-2, for 1987 as Exhibit E-2, in Form U5S for 1990,
File No. 30-222-2, as Exhibit E-2, in Form U5S for 1991, File No. 30-222-2,
as Exhibits E-2 and E-3 , in Form U5S for 1992, File No. 30-222-2, as
Exhibit E-2 in Form U5S for 1993, File No. 30-222-2, as Exhibit E-2, in
Form U5S for 1991, File No. 30-222-2, as Exhibit D-2, in Form U5S for 1994,
File No. 30-222-2, as Exhibit E-2, in Form U5S for 1995, File No. 30-222-2,
as Exhibit E-2 and in Form U5S for 1997, File No. 30-222-2, as Exhibit E-2.)
G-1 ALABAMA's Financial Data Schedule. (Designated in Form 8-K dated February
10, 1999, File No. 1-3164, as Exhibit 27.)
G-2 GEORGIA's Financial Data Schedule. (Designated in Form 8-K dated February
10, 1999, File No. 1-6468, as Exhibit 27.)
G-3 GULF's Financial Data Schedule. (Designated in Form 8-K dated February 10,
1999, File No. 0-2429, as Exhibit 27.)
</TABLE>
A-53
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS.
Exhibits (including reference to previous filings): (Continued)
Exhibit
Number Description of Exhibit
<S> <C>
G-4 MISSISSIPPI's Financial Data Schedule. (Designated in Form 8-K dated
February 10, 1999, File No. 0-6849, as Exhibit 27.)
G-5 SAVANNAH's Financial Data Schedule. (Designated in Form 8-K dated February
10, 1999, File No. 1-5072, as Exhibit 27.)
G-6 SOUTHERN system's consolidated Financial Data Schedule. (Designated in
Form 8-K dated February 10, 1999, File No. 1-3526, as Exhibit 27.)
H Organizational chart.
I Financial statements relating to certain exempt
wholesale generators and foreign utility
companies.
Exhibits listed above which have heretofore been filed with the SEC
pursuant to various Acts administered by the SEC, and which were designated as
noted above, are hereby incorporated herein by reference and made a part hereof
with the same effect as if filed herewith.
</TABLE>
A-54
<PAGE>
SIGNATURE
The undersigned registered holding 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 SOUTHERN COMPANY
Date: May 3, 1999 By /s/ W. L. Westbrook
W. L. Westbrook
Financial Vice President,
Chief Financial Officer, and
Treasurer
A-55
Exhibit A-7
MODIFIED
Form U-13-60
ANNUAL REPORT
For The Period
Beginning January 1, 1998 and Ending December 31, 1998
To The
U.S. SECURITIES AND EXCHANGE COMMISSION
Of
SOUTHERN ENERGY RESOURCES, INC.
(formerly known as SOUTHERN ENERGY, INC.)
(Exact Name of Reporting Company)
A Subsidiary Company
Date of Incorporation July 29, 1981. If not incorporated
Date of Organization______________
State or Sovereign Power under which Incorporated or Organized
State of Delaware
Location of Principal Executive Offices of Reporting Company
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
Report filed pursuant to File Number 70-6599
Name, title, and address of officer to
whom correspondence concerning this report should be
addressed:
James A. Ward V. President & Controller 900 Ashwood Parkway, Suite 500
(Name) (Title) (Address)
Name of Principal Holding Company under which Reporting Company is
Organized:
THE SOUTHERN COMPANY
<PAGE>
1
INSTRUCTIONS FOR THE USE OF MODIFIED FORM U-13-60
1. Time of Filing - - Annual Report essentially in the form of U-13-60 shall be
filed appended to Form U5S, Annual Report of the Parent and Associate Companies
Pursuant to the Public Utility Holding Company Act of 1935. Form U5S is required
to be filed by May 1.
2. Number of Copies - - Each annual report shall be filed in duplicate. The
company should prepare and retain at least one extra copy for itself in case
correspondence with reference to the report becomes necessary.
3. Definitions - - Definitions contained in Instruction 01-8 to the Uniform
System of Accounts for Mutual Service Companies and Subsidiary Service
Companies, Public Utility Holding Company Act of 1935, as amended February 2,
1979 shall be applicable to words or terms used specifically within the modified
Form U-13-60.
4. Organization Chart - - The company shall submit with each annual report a
copy of its current organization chart.
<PAGE>
2
- -------------------------------------------------------------------------------
LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS
- -------------------------------------------------------------------------------
Description of Schedules and Accounts Schedule or Page
Account Number Number
- -------------------------------------------------------------------------------
COMPARATIVE BALANCE SHEET Schedule I 3-4
- ------------------------
COMPANY PROPERTY Schedule II 5
ACCUMULATED PROVISIONS FOR DEPRECIATION AND
AMORTIZATION OF COMPANY PROPERTY Schedule III 6
INVESTMENTS Schedule IV 7
ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
-------------------------------------------- Schedule V 8
MISCELLANEOUS DEFERRED DEBITS Schedule IX 9
PROPRIETARY CAPITAL Schedule XI 10
LONG TERM DEBT Schedule XII 11
CURRENT AND ACCRUED LIABILITIES Schedule XIII 12
NOTES TO FINANCIAL STATEMENTS Schedule XIV 13
COMPARATIVE INCOME STATEMENT Schedule XV 14
- ----------------------------
ANALYSIS OF BILLING-ASSOCIATE COMPANIES Account 457 15
ANALYSIS OF BILLING-NONASSOCIATE COMPANIES
Account 458 16
SCHEDULE OF EXPENSE BY DEPARTMENT OR
FUNCTION
Schedule XVII 17-18
DEPARTMENTAL ANALYSIS OF SALARIES Account 920 19
DISPOSITION OF INTELLECTUAL PROPERTY Account 928 20
MISCELLANEOUS GENERAL EXPENSES Account 930.2 21
TAXES OTHER THAN INCOME TAXES Account 408 22
DONATIONS Account 426.1 23
OTHER DEDUCTIONS Account 426.5 24
NOTES TO STATEMENT OF INCOME Schedule XVIII 25
OUTSIDE SERVICES EMPLOYED Schedule XIX 26
ORGANIZATION CHART 27-28
<PAGE>
3
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
- ------------------------------------------------------------------------------
SCHEDULE I - COMPARATIVE BALANCE SHEET
- ------------------------------------------------------------------------------
Give balance sheet of the Company as of December 31 of the current and prior
year. (Note: Amounts are in thousands of dollars)
- ------------------------------------------------------------------------------
ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31
- ------------------------------------------------------------------------------
CURRENT PRIOR
------- ------
COMPANY PROPERTY
----------------
101 Company Property (Schedule II) 13,493 10,610
107 Construction work in progress (Schedule II) - -
------ ------
Total Property 13,493 10,610
------- ------
108 Less accumulated provision for depreciation and
amortization of company property (Schedule III) (7,274) (5,723)
------ ------
Net Company Property 6,219 4,887
------ ------
INVESTMENTS
-----------
123 Investments in associate companies - -
124 Other Investments (Schedule IV) 739 667
------ ------
Total Investments 739 667
------ ------
CURRENT AND ACCRUED ASSETS
-------------------------
131 Cash 14,712 1,998
134 Special deposits 596 941
135 Working funds 151 168
136 Temporary cash investments - -
141 Notes Receivable 40 75
143 Accounts Receivable 2,155 6,653
144 Accumulated provision for uncollectable accounts (567) (555)
146 Accounts receivable from associate companies
(Schedule V) 156,801 79,255
152 Fuel stock expenses undistributed - -
154 Materials and supplies 4,500 -
163 Stores expenses undistributed - -
165 Prepayments 191 128
174 Miscellaneous current and accrued assets 545 2,186
-------- ---------
Total Current and Accrued Assets 179,124 90,849
-------- ---------
DEFERRED DEBITS
---------------
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) 167 64
188 Research, development, or demonstration expenditures
- -
190 Accumulated deferred income taxes 37,047 35,088
-------- --------
Total Deferred Debits 37,214 35,152
------- -------
TOTAL ASSETS AND OTHER DEBITS 223,294 131,555
------- --------
<PAGE>
4
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
- -------------------------------------------------------------------------------
SCHEDULE I - COMPARATIVE BALANCE SHEET
- -------------------------------------------------------------------------------
ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31
- -------------------------------------------------------------------------------
CURRENT PRIOR
-------- -----
PROPRIETARY CAPITAL
-------------------
201 Common stock issued (Schedule XI) 100 100
211 Miscellaneous paid-in capital (Schedule XI) 288,846 205,059
215 Appropriated retained earnings (Schedule XI) - -
216 Unappropriated retained earnings (Schedule XI) (157,295) (134,428)
-------- --------
Total Proprietary Capital 131,651 70,731
-------- --------
LONG TERM DEBT
--------------
223 Advances from associate companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) - -
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
-------- --------
Total long-term debt - -
-------- --------
CURRENT AND ACCRUED LIABILITIES
------------------------------
231 Notes Payable - -
232 Accounts payable 12,282 12,857
233 Notes payable to associate companies (Schedule XIII)
- -
234 Accounts payable to associate companies
(Schedule XIII) 4,041 2,714
236 Taxes accrued 160 2,094
237 Interest accrued - -
238 Dividends declared - -
241 Tax collections payable 1,535 645
242 Miscellaneous current and accrued liabilities
(Schedule XIII) 21,059 13,652
-------- --------
Total current and accrued liabilities 39,077 31,962
-------- --------
DEFERRED CREDITS
----------------
253 Other deferred credits 40,049 15,424
255 Accumulated deferred investment tax credits - -
--------- --------
Total Deferred Credits 40,049 15,424
--------- --------
282 ACCUMULATED DEFERRED INCOME TAXES 12,517 13,438
---------------------------------
TOTAL LIABILITIES AND PROPRIETARY
CAPITAL 223,294 131,555
-------- --------
<PAGE>
5
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ----------------------------------------------------------------------------
SCHEDULE II - COMPANY PROPERTY
- ----------------------------------------------------------------------------
START OF END OF
YEAR RETIRED OTHER YEAR
DESCRIPTION BALANCE ADDITION OR SOLD CHANGES BALANCE
- ----------------------------------------------------------------------------
COMPANY PROPERTY
----------------
Account
- -------
301 ORGANIZATION 5 - - - 5
303 MISCELLANEOUS
INTANGIBLE
PLANT 795 - - - 795
304 LAND AND LAND
RIGHTS - - - - -
305 STRUCTURES AND
IMPROVEMENTS - - - - -
306 LEASEHOLD
IMPROVEMENTS 1 1,480 153 - - 1,633
307 EQUIPMENT 1 2 5,773 2,553 3 (277) 8,046
308 OFFICE FURNITURE
AND
EQUIPMENT 1 2,324 589 - (63) 2,850
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT 233 - - (69) 164
310 AIRCRAFT AND
AIRPORT EQUIPMENT - - - - -
311 OTHER COMPANY
PROPERTY 3 - - - - -
SUB-TOTAL 10,610 - - - 13,493
------ ----- --- ----- ------
107 CONSTRUCTION WORK
IN PROGRESS 4 -
------- ----- --- ----- ------
TOTAL 10,610 3,295 3 (409) 13,493
------- ----- --- ----- ------
1) PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
Purchase of Compute Hardware: $ 2,553
Purchase of Software Licenses:
Purchase of Office Furniture: 589
Professional Office Expansion: 153
2) SUBACCOUNTS ARE REQUIRED FOR EACH CLASS OF EQUIPMENT OWNED. THE
COMPANY SHALL PROVIDE A LISTING BY SUBACCOUNT OF EQUIPMENT ADDITIONS
DURING THE YEAR AND THE BALANCE AT THE CLOSE OF THE YEAR:
BALANCE AT
SUBACCOUNT DESCRIPTION ADDITIONS CLOSE OF YEAR
---------------------- --------- -------------
Computer Software - 795
Computer Hardware 2,553 8,046
3) DESCRIBE OTHER COMPANY PROPERTY:
Not Applicable
4) DESCRIBE CONSTRUCTION WORK IN PROGRESS:
Not Applicable
<PAGE>
6
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------
SCHEDULE III
ACCUMULATED PROVISION FOR DEPRECIATION AND
AMORTIZATION OF COMPANY PROPERTY
- -------------------------------------------------------------------------------
CHARGED OTHER
START OF TO CHANGES END OF
YEAR ACCOUNT RETIRE- AND YEAR
DESCRIPTION BALANCE 403 MENTS (DEDUCT) BALANCE
- -------------------------------------------------------------------------------
COMPANY PROPERTY
---------------
Account
- -------
301 ORGANIZATION - - - - -
303 MISCELLANEOUS
INTANGIBLE
PLANT 663 114 - - 776
304 LAND AND LAND
RIGHTS - - - - -
305 STRUCTURES AND
IMPROVEMENTS
- - - - -
306 LEASEHOLD
IMPROVEMENTS 585 321 - - 906
307 EQUIPMENT 3,523 918 - - 4,415
308 OFFICE FURNITURE
AND FIXTURES
819 204 13 - 1,010
309 AUTOMOBILES,
OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT 134 25 19 - 139
310 AIRCRAFT AND
AIRPORT
EQUIPMENT - - - - -
311 OTHER COMPANY
PROPERTY - - - - -
TOTAL 5,723 1,582 32 - 7,274
----- ----- -- -- -----
<PAGE>
7
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULE IV - INVESTMENTS
- ------------------------------------------------------------------------------
INSTRUCTIONS: Complete the following schedule concerning investments.
Under account 124, "Other Investments", state each
investment separately, with description, including the
name of issuing company, number of shares or principal
amount, etc.
- ------------------------------------------------------------------------------
BALANCE AT
BEGINNING OF BALANCE AT
DESCRIPTION YEAR CLOSE OF YEAR
- ------------------------------------------------------------------------------
ACCOUNT 124 - OTHER INVESTMENT
Investment in Mobile Energy Services Co. , LLC 667 739
--- ---
TOTAL 667 739
--- ---
<PAGE>
8
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -----------------------------------------------------------------------------
SCHEDULE V - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
- -----------------------------------------------------------------------------
INSTRUCTIONS: Complete the following schedule listing accounts
receivable from each associate company. Where the company
has provided accommodation or convenience payments for
associate companies, a separate listing of total payments
for each associate by subaccount should be provided.
- ------------------------------------------------------------------------------
BALANCE AT BALANCE AT
BEGINNING OF CLOSE OF
YEAR YEAR
DESCRIPTION
ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM
ASSOCIATE COMPANIES:
Alabama Power Co. 1 6
Georgia Power Co. 2 -
Southern Company Services 512 656
Mississippi Power Company - 69
Southern Energy North America, Inc. 26 -
SEI Birchwood, Inc. 956 83
Southern Energy, Inc.
(formerly SEI Holdings, Inc.) 492 62
Associadios - 9
Southern Energy-Newco2, Inc. 1,500 2,251
Electricidad - 9
Hidroelectric Alicura, S.A. 324 141
Mobile Energy Services Company (MESCO) 868 540
Mobile Energy Services Holding (MESH) 500 500
Southern Energy Trading and Marketing, Inc. 23,731 994
Edelnor 3,118 897
Southern Electric International Trinidad, Inc. 104 148
Birchwood Power Partners 1,624 1,304
Southern Electric, Inc. 3 3
Savannah Electric - 61
Southern Company Energy Marketing - 155
State Line Holding Corporation - 363
Southern Investments Holding UK (10) (7)
Southern Investments UK plc 1,500 1,603
South Western Electricity plc 796 2,688
Southern Electric Bahamas Holding, Ltd. 619 462
Beteiligungs GmbH 1,164 1,903
SEI Europe, Inc. 822 314
SEI Europe, Limited 1,341 -
Greenhost, Inc. 5 304
Southern Electric Bahamas Limited 101 101
SE do Brasil 378 210
SEI State Line 10 597
State Line LLC 5,091 71,528
SEI Clairton, Inc. 324 5
SEI Finance 1 1
Worldwide Holdings Beteiligungs 412 -
Germany BEWAG, Inc 1,340 3,347
SEI Worldwide Holdings, Inc. 1,340 3,347
Southern Energy Canal, LLC - 17,764
Southern Energy Kendall, LLC - 7,127
SE Clairton 2, Inc. - (10)
Southern Energy Development - Europe Gmbh3 - 99
Southern Energy International Inc. - 96
Dutch Gas Lease, Inc. - 1
Southern Energy Holdings GmbH2 9,440 6,135
SoCo Capital Funding 2 3
Southern Energy Asia, Inc. 15,184 1,978
CEPA 1,505 1,505
Sual Slipform 424 2,381
CEPA Slipform 796 3,672
CEPA Tileman Power Systems 7 48
CEPAL 735 16,671
Allied Queensland Coalfield 104 323
Hopewell Tileman Philippines 8 8
Hopewell Energy Philippines 8 8
Southern Energy Finance 992 1,021
Hopewell Power Philippines 110 155
Hopewell Energy Ltd - 49
CEPA Operations HK - 151
CEPAO (Phil) Corp. - 3
Phillippine Power & Infrastruture Holding - 136
Corporation
Southern Energy Shajiao C Ltd. - 52
EPZ Lease, Inc. 8 9
CEPA Construction - 906
CEPA Operations Philippines Corp. - 506
CEPA Operation - 102
Southern Energy Holding Philippine - 384
Sual Construction - 859
SEI Brazil 937 -
------ -------
79,255 156,801
------ -------
TOTAL
<PAGE>
9
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULE IX - MISCELLANEOUS DEFERRED DEBITS
- ------------------------------------------------------------------------------
INSTRUCTION: Provide detail of items in this account. Items less than $10,000
may be grouped by class showing the number of items in each class.
- ------------------------------------------------------------------------------
BALANCE AT
BEGINNING OF BALANCE AT
DESCRIPTION YEAR CLOSE OF YEAR
- ------------------------------------------------------------------------------
ACCOUNT 186 - MISCELLANEOUS
DEFERRED DEBITS 1)
64 167
TOTAL 64 167
-- ---
1) Miscellaneous Deferred Debits: $ 167 K for "VAT" credit & the SERI
Employee Promissory Note.
<PAGE>
<TABLE>
<CAPTION>
10
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XI
PROPRIETARY CAPITAL
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
NUMBER OF
SHARES PAR OR STATED VALUE
ACCOUNT NUMBER CLASS OF STOCK AUTHORIZED PER SHARE OUTSTANDING CLOSE OF PERIOD
------------- -------------- ---------- ------------------- -----------------------------
NO. OF SHARES TOTAL AMOUNT
201 COMMON STOCK ISSUED 1,000 $100 1,000 100
- ----------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature
of transactions which give rise to the reported amounts.
DESCRIPTION AMOUNT
ACCOUNT 211 MISC. PAID IN CAPITAL 288,246
ACCOUNT 215 APPROPRIATED RETAINED
EARNINGS
TOTAL 288,246
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
BALANCE AT NET INCOME OR
BEGINNING OF YEAR (LOSS) DIVIDENDS PAID BALANCE AT
CLOSE OF YEAR
---------------------------------------------------------------------------
DESCRIPTION
ACCOUNT 215 UNAPPROPRIATED RETAINED EARNINGS (134,428) (22,875) - (157,295)
TOTAL (134,428) (22,875) - (157,295)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
11
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XII
LONG-TERM DEBT
- ----------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Advances from parent and associate companies should be reported separately for advances on notes, and advances on
open accounts. Names of associate companies from which advances were received shall be shown under the class and
series of obligation column. For Account 224 - Other Long Term Debt provide the name of creditor company or
organization, terms of the obligation, date of maturity, interest rate, and the amount authorized and outstanding.
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
TERMS OF OBLIG BALANCE AT BALANCE AT
NAME OF CREDITOR CLASS & SERIES DATE OF INTEREST AMOUNT BEGINNING OF (1) CLOSE OF YEAR
OF OBLIGATION MATURITY RATE AUTHORIZED YEAE ADDITIONS DEDUCTIONS
ACCOUNT 223 - ADVANCES FROM PARENT AND ASSOCIATE
COMPANIES: - - - -
ACCOUNT 224 - OTHER LONG -TERM DEBT:
Not Applicable
TOTAL - - - -
- -
(1) GIVE AN EXPLANATION OF DEDUCTIONS:
</TABLE>
<PAGE>
12
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULE XIII - CURRENT AND ACCRUED LIABILITIES
- ------------------------------------------------------------------------------
INSTRUCTIONS: Provide balance of notes and accounts payable to each
associate company. Give description and amount of
miscellaneous current and accrued liabilities. Items
less than $10,000 may be grouped, showing the number of
items in each group.
- ------------------------------------------------------------------------------
BALANCE AT BALANCE AT CLOSE
BEGINNING OF YEAR OF YEAR
D E S C R I P T I O N
- -------------------------------------------------------------------------------
ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE
COMPANIES:
THE SOUTHERN COMPANY - -
TOTAL - -
- ------------------------------------------------------------------------------
ACCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE
COMPANIES :
Alabama Power Company - -
Georgia Power Company 100 195
Southern Company Services 950 1,560
Mobile Energy Services Holdings 1 1
SEI Europe, Limited 1,175 1,796
Hidroelectric Alicura, S.A. - -
Birchwood Power Partners - -
South Western Electricity plc 428 429
Mobile Energy Services Co., LLC - -
SEI Birchwood - -
Southern Energy, Inc.
(formerly SEI Holdings, Inc.) - -
Southern Enterprises - -
SEI Hawaii 60 59
----- -----
TOTAL 2,714 4,041
----- -----
ACCOUNT 242 - MISCELLANEOUS CURRENT AND
ACCRUED LIABILITIES:
Employee Garnishments W/H - -
Employee Flex Dependent Care 4 4
Employee Flex Health Care - 9
Accrued Bonuses - Home Office 7,269 12,396
Accrued Bonuses - Plant 514 754
Accrued Incentive Payable 1,379 2,743
Employee Group Insurance Premiums
Withheld - -
Billing in Excess of Cost on
Uncompleted Contracts 1,296 1,415
Vacation Clearing Current/Prior Year 1,627 3,711
Loss Provision - Macon Kraft 1,477 -
ESP and ESOP 70 2
MESCO Insurance / Union Dues - -
Miscellaneous - 4
United Way Withholdings 16 21
------ ------
TOTAL 13,652 21,059
------ ------
<PAGE>
13
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided forimportant notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
------------------------------------------
General
-------
Southern Energy Resources, INC. ("SERI" or the "Company"), a wholly owned
subsidiary of The Southern Company ("Southern"), is engaged in the
development, construction, operation and maintenance ("O&M"), and
ownership of cogeneration and independent power facilities in the United
States and internationally. The Company's billings to affiliates
represents approximately 91% of revenues, while its O&M activities with
unaffiliated entities in New York represent approximately 2% of revenues.
SERI's international consulting efforts represent approximately 4% of the
Company's revenues with the remaining 3% being derived from SERI's global
business development efforts.
SERI owns 99.9% of SEI Operadora del Argentina, S.A., incorporated in 1993
for the purpose of providing operational and maintenance services to
Hidroelectrica Alicura, S.A., and 1% of Mobile Energy Services Company,
L.L.C. ("Mobile Energy"), formed in 1995 for the purpose of owning and
operating an energy and chemical recovery complex located in Mobile,
Alabama. SERI also owns 100% of Southern Electric International, Asia,
Inc. and 100% of Southern Electric International, GmbH, which were formed
in 1995 for the purpose of business development in Asia and Europe,
respectively.
Accounting 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 and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Basis of Presentation
---------------------
The consolidated financial statements include the accounts of SERI and its
subsidiaries. All significant intercompany accounts and transactions have
been eliminated in consolidation. Certain prior year amounts have been
reclassified to conform with the current financial statement presentation.
Cash and Cash Equivalents
-------------------------
Investments with an original maturity of 90 days or less are classified as
cash and cash equivalents.
Property and Equipment
----------------------
Property and equipment are recorded at cost. Depreciation and amortization
are provided using the straight-line method over the estimated economic
lives of the related assets (ranging from 3 years to 12 years). Leasehold
improvements are amortized over the shorter of the respective lease terms
or the useful lives of the improvements. The Company's capitalization
policy expenses the cost of certain immaterial assets when purchased. Upon
the retirement or sale of assets, the costs of such assets and the related
accumulated depreciation are removed from the balance sheet and the gain
or loss, if any, is credited or charged to income.
Project Development Costs
-------------------------
SERI capitalizes and simultaneously fully reserves for development costs
for projects in which a milestone has not yet been achieved but whose
likelihood of success is probable. It is reasonably possible that the
estimated reserve will be reduced significantly in the near term due to
successful project development efforts, which would have a beneficial
impact on earnings.
<PAGE>
13-A
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- ------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may be
indicated here by reference.
- ------------------------------------------------------------------------------
Income Taxes
------------
The Company provides deferred income taxes for all significant income tax
temporary differences in accordance with Financial Accounting Standards
Board Statement of Financial Accounting Standards ("SFAS") No. 109,
"Accounting for Income Taxes." SFAS No. 109 requires, among other things,
the use of an asset and liability method for the recognition of deferred
tax liabilities and assets.
Revenue Recognition
-------------------
Revenues from construction contracts are recognized using the
percentage-of-completion method. The extent of progress toward completion
is measured by comparing the percentage of costs incurred to date to total
estimated costs on each contract. Provisions for estimated losses on
uncompleted contracts are charged to income in full when such losses
become probable and are reasonably estimable. Other service revenues are
recognized when earned.
2. EMPLOYEE BENEFITS
---------------
Pension Plan
------------
SERI participates in the Pension Plan for Employees of Southern Company
Services, Inc., a defined benefit, trusteed, noncontributory plan covering
substantially all regular employees. Certain union employees engaged in
the operations and maintenance contract with Mobile Energy participate in
a separate pension plan. Likewise, union employees engaged in the
operations of State Line Energy, L.L.C. in Hammond, IN are covered by a
separate union pension plan sponsored through The United Steelworkers of
America.
The following table sets forth SERI's defined benefit plans' funded status
as of December 31, 1998 (in thousands):
1998
--------
Benefit obligation at beginning of year $ 18,562
Service Cost 1,318
Interest Cost 1,390
Benefits Paid (231)
(Gain)/Loss (705)
Amendments 836
-----------
Benefit obligation at end of year $ 21,170
===========
Funded Status $ 1,510
Unrecognized net transition obligation 100
Unrecognized Net (Gain) / Loss (6,626)
Unrecognized prior service cost 842
Accruals for Acquisition -------
(11,850)
----------
Accrued pension costs recognized in the balance sheets $ (16,024)
==========
The actuarial present value of the projected benefit obligation for the
plans was determined using a discount rate of 6.75% for 1998 and a rate of
increase in future compensation levels of 4.25% for 1998. The expected
long-term rate of return on assets was 8.5% for 1998.
<PAGE>
13-B
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- ------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
The net periodic pension cost for 1998 included the following components
(in thousands):
1998
---------
Service cost-benefits earned $ 1,318
Interest cost on projected benefit obligation 1,389
Actual return on plan assets (1,583)
Net amortization and deferrals (105)
-------
Net periodic pension cost $ 1,019
=======
In addition, during 1998 SERI recorded net periodic cost of $ 452,587
related to Mobile's Hourly Union Plan, and provided pension payments to
The United Steelworkers of America in the amount of $ 216,514 for union
employees at State Line.
Postretirement Benefits
-----------------------
SERI also provides certain medical care and life insurance benefits for
retired employees. Substantially all employees may become eligible for
these benefits when they retire.
Effective January 1, 1993, the Company adopted SFAS No. 106, "Employers
Accounting for Postretirement Benefits Other Than Pensions." SFAS No. 106
requires that medical care and life insurance benefits for retired
employees be accounted for on an accrual basis using a specified actuarial
method, benefit/years-of-service.
The funded status of the medical and life plans at December 31, 1998 was
as follows (in thousands):
1998
--------------------
Medical Life
--------- -------
Benefit obligation at beginning of year $ 1,916 $ 817
Service Cost 154 46
Interest Cost 143 61
Benefits Paid (36) 0
(Gain)/Loss 391 154
Amendments 1,097 271
------- ------
Benefit obligation at end of year $ 3,665 $1,349
======= ======
The discount, future compensation, and expected long-term return on assets
rates used for the pensions described above were also used in measuring
the postretirement benefit obligation. The weighted average medical care
cost trend rate was 8.81 % for 1998, decreasing gradually to 5.50% through
the year 2005 and remaining at that level thereafter.
<PAGE>
13-C
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
- -INSTRUCTIONS: The space below is provided or important notes regarding
the financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may
be indicated here by reference.
- -------------------------------------------------------------------------------
The components of the plans' net costs are shown below (in thousands):
1998
----------------------
Medical Life
----------------------
Service Cost $154 $ 46
Interest Cost 143 61
Prior Service Cost (54) (21)
(Gain)/Loss 37 12
---- ----
Net postretirement costs $ 280 $ 98
===== ====
Deferred Compensation Plans
---------------------------
In 1993, SERI began to partially compensate certain senior management
through a stock formula plan, which seeks to reward individuals for the
performance of the investments of SERI and its affiliated companies over a
period of four years, relative to the performance of SERI and Southern
Company.
Effective January 1, 1997 the Amended and Restated Deferred Incentive
Compensation Plan and the Value Creation Plan were enacted. The purposes
of the Southern Energy, Inc. Amended and Restated Deferred Incentive
Compensation Plan is to provide a financial incentive which will focus the
efforts of certain executives on areas which will have a direct and
significant influence on the corporate performance of Southern Energy
Resources, Inc. and to provide the potential for levels of compensation
which will enhance the ability of the Company to attract, retain and
motivate such executives.
The Value Creation Plan grants Stock Appreciation Rights that grow as
SERI's value grows, and can be exercised for the full appreciation amount
after four years (when the SAR's are fully vested). The amount of the
grant is based on market data for a given job, adjusted for Southern
Energy's performance compared to net income and return on investment
goals, as determined by Management Council and approved by the Southern
Company Compensation Committee.
Participants credited with an account balance at December 31, 1996 under
the terms of the original deferred compensation plan have had such
balances converted into awards under this new plan based on the dollar
value of such account as of December 31, 1996 as determined under the
terms of the original plan. Thereafter, the converted award shall continue
to vest in accordance with their original terms under the original plan
but shall be adjusted annually based on SERI Value alone.
As the value of the award is not known until the vesting date, SERI
accounts for this formula plan as a variable plan; as such, the Company
regularly assesses the current value of the awards and adjusts its accrued
liability accordingly. At December 31, 1998 the Company had accrued
approximately $4,634,636 related to this plan, which are included in
long-term liabilities in the accompanying consolidated balance sheets.
In addition to the stock formula plan for senior officers, SERI partially
compensates employees associated with a specific successful project bid
effort through a deferred cash compensation program. Upon successful
completion of a bid, members directly affiliated with the effort receive a
cash bonus, half of the estimated final payment is paid immediately and
half of the estimated final payment is deferred for a period of two years
and paid based on the actual performance of the related investment. SERI
accrues amounts at the time the award is granted and adjusts the liability
accordingly when awards vest and are paid. At December 31, 1998 the
Company had accrued approximately $2,743,317 related to this plan, which
is included in other accrued liabilities in the accompanying consolidated
balance sheets. SERI paid approximately $ 0 to employees under this plan
during 1998 related to successful bids in 1998.
<PAGE>
13-D
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ----------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- ----------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important note regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may be
indicated here by reference.
- ----------------------------------------------------------------------------
3. OPERATING LEASES
----------------
SERI has entered into noncancelable operating leases for office space. The
expenses under these leases were approximately $2,012,000 in 1998. These
leases contain certain concessions and escalations; therefore, rent
expense is recognized on a straight-line basis over the lease terms. The
future rental obligations for the remaining lease terms are as follows (in
thousands):
1999 $2,184
2000 2,062
2001 691
2002 638
2003 638
Thereafter 691
------
Total minimum lease commitments $6,904
======
4. RELATED-PARTY TRANSACTIONS
--------------------------
Additional Equity Contributions
-------------------------------
Southern Energy, Inc. (formerly SEI Holdings) contributed approximately
$74,260,000 and $83,788,000 in 1997 and 1998 respectively to paid-in
capital.
Construction Activities
-----------------------
During 1994, SERI was engaged by an affiliated company to construct a
coal-fired cogeneration facility and related greenhouse in King George
County, Virginia, the construction of which was completed during 1997. The
fixed contract price for the construction of these facilities is
$292,040,000.
Services
-------
SERI has agreements with Southern Company Services, Inc. and each of the
system operating companies under which those companies provide the
following services to SERI at cost: general engineering, design
engineering, accounting and statistical budgeting, business promotion and
public relations, systems and procedures, training, and administrative and
financial services. In addition to these services, certain facilities of
the system companies are made available to SERI and its customers. SERI
reimburses the service company and the various operating companies at cost
for these services. Such costs in 1998 and 1997 amounted to approximately
$ 20,868,703 and $ 31,417,464, respectively.
<PAGE>
13-E
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any accounts thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating
to financial statements shown elsewhere in this report may be
indicated here by reference.
- -------------------------------------------------------------------------------
SERI has a contract with Mobile Energy, an affiliated entity to operate
and maintain an energy complex in Mobile, Alabama for a period of 25 years
at cost. SERI has a similar agreement with Birchwood Power Partners, L.P.
("BPP") to operate and maintain its 220 megawatt coal-fired cogeneration
facility located in King George County, Virginia, for a period of 25 years
for a fee of $120,000 per year, adjusted annually for inflation.
5. CONTINGENCIES
-------------
Litigation With Former President
-------------------------------
In October 1991, a former SERI president filed suit in the Superior Court
of DeKalb County (Georgia) against Southern, SERI, and an executive vice
president of Southern. The plaintiff alleged defamation, breach of
contract, and intentional infliction of emotional distress arising from
his termination as president of SERI. Judgment in favor of the plaintiff
was awarded by the court during 1994 in the amount of $2,700,000, plus
legal costs of approximately $2,000,000. In 1994, SERI filed an insurance
claim for an amount equal to the total judgment. The Company's insurer has
elected to appeal the Superior Court's judgment. In the opinion of
management, any portion of the judgment ultimately deemed uninsurable will
not have a material adverse impact on the results of operations or
financial position of the Company.
Labor Subject to Collective Bargaining Agreements
-------------------------------------------------
Substantially all of the employees engaged in the operations and
maintenance contract with Mobile Energy and at State Line Energy, L.L.C.
are subject to collective bargaining agreements, none of which expired
during 1998.
Other Matters
------------
The Company is subject to other legal actions and claims arising in the
ordinary course of business. In the opinion of management, the disposition
of these matters will not have a material adverse impact on the results of
operations or financial position of the Company.
<PAGE>
<TABLE>
<CAPTION>
14
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------------------
SCHEDULE XV
STATEMENT OF INCOME
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CURRENT PRIOR
ACCOUNT D E S C R I P T I O YEAR YEAR
- -------------------------------------------------------------------------------------------
INCOME
457 Charges rendered to associate companies 148,443 103,304
458 Services rendered to non-associate companies 14,383 58,760
421 Miscellaneous income or loss 212 776
------- -------
Total Income 163,040 162,840
------- -------
EXPENSES
920 Salaries and wages 37,659 38,751
921 Office supplies/expense, Travel, & Auto 12,947 14,797
922 Administrative expense transferred - credit (7) 37
923 Outside services employed 112,909 76,719
924 Property insurance 1,711 666
925 Injuries and damages 49 237
926 Employee pensions and benefits 21,019 28,175
928 Disposition of intellectual property - -
930.1 General advertising expense 84 208
930.2 Miscellaneous general expenses 1,794 1,320
931 Rents 3,798 2,692
932 Maintenance of structures and equipment 69 1,695
403 Depreciation and amortization expense 1,584 1,295
408 Taxes other than income taxes 4,489 4,075
409 Income taxes (9,730) (7,235)
410 Provision for deferred income taxes 1,605 14,107
411 Provision for deferred income taxes - credit (4,386) (9,875)
411.5 Investment tax credit - -
Foreign taxes - 186
426.1 Donations 167 150
426.5 Other deductions - -
427 Interest on long-term debt - 779
430 Interest on debt to associate companies - -
431 Other interest expense 154 -
------- --------
Total Expense 185,915 168,779
------- --------
Net Income or (Loss) (22,875) (5,939)
------- --------
INSTRUCTION: Provide a schedule briefly describing types of intercompany transactions.
TRANSACTIONS WITH ASSOCIATE COMPANIES
- ------------------------------------
SERI has agreements with Southern Company Services, Inc. and each of the system
operating companies under which those companies provide the following services
to SERI at cost: general engineering, design engineering, accounting and
statistical, rates, budgeting, business promotion and public relations, systems
and procedures, training, administrative, and financial services. In addition to
these services, certain facilities of the system companies are made available to
SERI and its customers.
The service company and operating companies provide technical direction and
management of the services provided to SERI and its customers. SERI reimburses
the service company and operating companies at cost for these services.
</TABLE>
<PAGE>
15
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- -------------------------------------------------------------------------------
ANALYSIS OF BILLINGS
CHARGES TO
ASSOCIATE COMPANIES
ACCOUNT 457
- -------------------------------------------------------------------------------
TOTAL
NAME OF ASSOCIATE COMPANY AMOUNT
BILLED
- -------------------------------------------------------------------------------
Allied Queensland Coalfield Limited 219
Bewag 45
Birchwood Power Partners 3,763
CEMIG 3,475
CEPA Construction 906
CEPA Operation 102
CEPA Operations (HK) 151
CEPA Operations Philppines Corp 505
CEPA Slipform 2,875
CEPA Tileman Power Systems Limited 42
CEPAL 15,936
CEPAO (PHIL) Corp 3
Edelnor S.A. 4,390
Hopewell Energy LTD 49
Hopewell Energy Philippines Corp 1
Hopewell Power Philippines 173
Mobile Energy Services 5,988
Mississippi Power Co. 1
New England 4,450
Philippines Power & Infrastruture Holdings 136
SE Clairton 13
SE Finance 99
SEB Holdings, Inc. 2,278
SEI Beteilgungs GMBH 735
SEI Birchwood 413
SEI Europe 561
SEI Germany BEWAG Inc. 2,646
SEI Holdings, Inc. 211
SEI Trinidad, Inc. 1,595
SEI World Wide Holdings Inc. 2,646
South Western Electricity PLC 6,789
Southern Company Energy Marketing. 5,600
Southern Company Services 143
Southern Energy Asia, Inc. 3,113
Southern Energy Finance 1,836
Southern Energy Holding Philippines 384
Southern Energyg International Inc. 1,056
Southern Energy Shajiao C Ltd 53
Southern Energy Newco2 Inc. 759
Southern Investment Holdings 2
Southern Investments UK PLC 104
State Line LLC 66,437
Sual Construction Corp. 859
Sual Slipform 1,957
Tarahan 4,290
Other 654
-------
TOTAL 148,443
<PAGE>
16
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ---------------------------------------------------------------------------
ANALYSIS OF BILLING
NON-ASSOCIATE COMPANIES
ACCOUNT 458
- ---------------------------------------------------------------------------
DESCRIPTION TOTAL COST EXCESS OR TOTAL AMOUNT
DEFICIENCY BILLED
----------- ----------- ---------- ------------
Consulting & Engineering 3,922 2,635 6,557
Information Systems - - -
Nuclear - - -
Franchises & Other - - -
Operations 84,211 (76,385) 7,826
Project Management - - -
Construction - - -
Pooled Inventory Management
(PEICO) - - -
Good Cents - - -
TOTAL 88,133 (73,750) 14,383
INSTRUCTION: Provide a brief description of the sales and services rendered by
category in accordance with your sales and service contracts and
list the amounts applicable per category.
<PAGE>
<TABLE>
<CAPTION>
17
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE OF EXPENSE DISTRIBUTION
BY DEPARTMENT OR SERVICE FUNCTION
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
D E S C R I P T I O N O F I T E M S
D E P A R T M E N T O R S E R V I C E F U N C T I O N
TOTAL
AMOUNT OVERHEAD SERI Operadora Asia & GmbH
- ------------------------------------------------------------------------------------- ---------- --------------------------------
920 SALARIES AND WAGES 37,659 37,639 - 19
921 OFFICE SUPPLIES/EXPENSES & TRAVEL 12,947 12,937 - 9
922 ADMIN EXP TRANSFERRED - CREDIT (7) (7) - -
923 OUTSIDE SERVICES EMPLOYED 112,909 112,269 555 85
924 PROPERTY INSURANCE 1,711 1,710 - 1
925 INJURIES AND DAMAGES 49 49 - -
926 EMPLOYEE PENSIONS AND BENEFITS 21,019 21,019 - -
928 DISPOSITION OF INTELLECTUAL PROP. - - - -
930.1 GENERAL ADVERTISING EXPENSE 84 84 - -
930.2 MISCELLANEOUS GENERAL EXPENSE 1,794 1,723 - 71
931 RENTS 3,798 3,425 - 374
932 MAINTENANCE OF STRUCTURES & EQUIP 69 69 - -
403 DEPRECIATION & AMORTIZATION EXP 1,584 1,568 - 16
408 TAXES OTHER THAN INCOME TAX 4,489 4,439 50 -
409 INCOME TAXES (9,730) (9,730) - -
410 PROVISION FOR DEFERRED INCOME TAX 1,605 1,605 - -
411 PROV DEFERRED INCOME TAX - CREDIT (4,386) (4,386) - -
FOREIGN TAXES - - - -
411.5 INVESTMENT TAX CREDIT - - - -
426.1 DONATIONS 167 167 - -
426.5 OTHER DEDUCTIONS - - - -
427 INTEREST ON LONG TERM DEBT - - - -
430 INTEREST ON DEBT TO ASSOCIATE CO. - - - -
427 INTEREST EXPENSE DEFERRED 154 154 - -
INSTRUCTION: Indicate each department or service
function. 185,915 184,735 605 575
(See instruction 01-3 Gen'l Structure of Acc'ting Structure
System: Uniform System Account. TOTAL EXPENSES
</TABLE>
<PAGE>
18
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31, 1998
- ------------------------------------------------------------------------------
SCHEDULES OF EXPENSE DISTRIBUTION
BY DEPARTMENT OR FUNCTION
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
ACCOUNT NUMBER D E P A R T M E N T O R F U N C T I O N
921
922
923
924
925
926
928
930.1
930.2
931
932
403
408
409
410
411
411.5
426.1
426.5
427
430
431
<PAGE>
19
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- ------------------------------------------------------------------------------
DEPARTMENTAL ANALYSIS OF SALARIES
ACCOUNT 920
- ------------------------------------------------------------------------------
SALARY NUMBER
NAME OF DEPARTMENT OR SERVICE FUNCTION EXPENSE PERSONNEL
-------------------------------------- ------- ----------
Indicate each department or service function. TOTAL AMOUNT END OF YEAR
SOUTHERN ENERGY RESOURCES, INC. 37,659 582
TOTAL 37,659 582
<PAGE>
20
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- -------------------------------------------------------------------------------
DISPOSITION OF INTELLECTUAL PROPERTY
ACCOUNT 928
- -------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount included in Account 928,
"Disposition of Intellectual Property", classifying such
expenses by associate company receiving compensation for
Disposition of Intellectual Property.
- ----------------------------------------------------------------------------
A S S O C I A T E C O M P A N Y AMOUNT
- ----------------------------------------------------------------------------
Not Applicable
TOTAL -
- -------------------------------------------------------------------------------
<PAGE>
21
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- ------------------------------------------------------------------------------
MISCELLANEOUS GENERAL EXPENSES
ACCOUNT 930.2
- ------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount in Account 930.2,
Miscellaneous General Expenses", classifying such expenses
according to their nature. Payments and expenses permitted by
Section 321 (b)(2) of the Federal Election Campaign Act,
as amended by Public Law 94-283 in 1976 (2 U.S.C.S. 441(b)(2)
shall be separately classified.
- ------------------------------------------------------------------------------
D E S C R I P T I O N AMOUNT
- ------------------------------------------------------------------------------
Dues and Memberships 206
Miscellaneous General Expense for : 1,576
Storage of records Jan - Dec 97
Birchwood Construction Costs
Inside move of Accounting and Construction Staff
Misc. purchases from the Atlanta Novelty Company
Annual license, certification & registration fees
Bank & wire transfer fee
Holiday Gala Expenses
Kitchen/Bathroom Supplies
Office cleaning
Petty cash expense
Miscellaneous
Other Expenses
Bad Debt Expense 12
TOTAL 1,794
- -------------------------------------------------------------------------------
<PAGE>
22
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- ------------------------------------------------------------------------------
TAXES OTHER THAN INCOME TAXES
ACCOUNT 408
- ------------------------------------------------------------------------------
INSTRUCTIONS: Provide an analysis of Account 408, "Taxes Other Than Income
Taxes". Separate the analysis into two groups: (1) other than
U.S. Government taxes, and (2) U.S. Government taxes. Specify
each of the various kinds of taxes and show the amounts thereof.
Provide a subtotal for each class of tax.
- -------------------------------------------------------------------------------
K I N D O F T A X AMOUNT
- -------------------------------------------------------------------------------
Other than U.S. Government:
State Unemployment
Real Estate and Personal Property 61
Other State and Local Taxes and Licenses 120
Sales Tax 5
Taxes Other Than Income Taxes 3
Chile Withholding Tax expense 1,098
Mexico Expatriate Social Security Tax - Employer -
Australia Expatriate Income tax - Employer -
Puerto Rico Income Tax - Employee Differential -
Foreign Tax Expense 50
Use Tax -
Expatriate Taxes 1,026
-----
Subtotal 2,362
-----
U. S. Government:
FICA - Employers Portion 2,044
FUTA 31
SUTA 52
-----
Subtotal 2,126
-----
-----
TOTAL 4,489
-----
<PAGE>
<TABLE>
<CAPTION>
23
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- ---------------------------------------------------------------------------------------
DONATIONS
ACCOUNT 426.1
- ---------------------------------------------------------------------------------------
- -INSTRUCTIONS: Provide a listing of the amount included in Account 426.1
"Donations", classifying such expenses by its purpose. The
aggregate number and amount of all items less than $3,000
may be shown in lieu of details.
- ---------------------------------------------------------------------------------------
<S> <C> <C>
NAME OF RECIPIENT PURPOSE OF DONATION AMOUNT
- ---------------------------------------------------------------------------------------
29 Items ( Less than $3,000 each) Employer Gift Matching Contributions 32
United Way of Metropolitan Atlanta Corporate Contribution 15
Boy Scouts of America Atlanta Area Council 10
Grand Bahamas Children' Center Corporate Contribution 3
Zoo Atlanta Table 1998 Beastly Feast Festival 4
Carter Center Corporate Contribution 6
Robert College of Istanbul Charitable Contribution 5
Southern Institute Sponsorship 4
Georgia Tech Athletic Association Alexander Tharpe Fund 5
Zoo Atlanta Corporate Contribution 5
Carter Center Corporate Contribution 6
American Academy in Berlin Corporate Contribution 60
Empty Stocking Fund Corporate Contribution 5
Birmingham Festival of Arts Association Corporate Contribution 3
---
TOTAL 167
---
</TABLE>
<PAGE>
24
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- ------------------------------------------------------------------------------
OTHER DEDUCTIONS
ACCOUNT 426.5
- ------------------------------------------------------------------------------
INSTRUCTIONS: Provide a listing of the amount included in Account 426.5
"Other Deductions", classifying such expenses according to
their nature.
- ------------------------------------------------------------------------------
AMOUNT
D E S C R I P T I O N NAME OF PAYEE BILLED
- --------------------------------------------- --------------------------------
All deductions less than two hundred dollars.
---------
TOTAL
<PAGE>
25
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- -----------------------------------------------------------------------------
SCHEDULE XVIII
NOTES TO STATEMENT OF INCOME
- -----------------------------------------------------------------------------
INSTRUCTIONS: The space below is provided for important notes regarding the
statement of income or any account thereof. Furnish
particulars as to any significant increase in services rendered
or expenses incurred during the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
- -----------------------------------------------------------------------------
<PAGE>
26
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
For the Year Ended December 31,1998
- -------------------------------------------------------------------------------
SCHEDULE XIX
OUTSIDE SERVICES EMPLOYED 923
- -------------------------------------------------------------------------------
INSTRUCTION Provided below is a break down of outside services employed
- -------------------------------------------------------------------------------
1998 1997
---- ----
Legal Fees 11,869 16,730
Accounting and Audit Fees 104 457
Alabama Power Company 109 283
Georgia Power Company 931 1,009
Gulf Power Company 8 53
Mississippi Power Company 11 98
Southern Company Services 15,716 10,413
Savannah Electric Company 63 13
Southern Development & Investment Group (162) 1,250
Other Outside Companies 1) 84,260 46,413
Joint Venture SEI/Daniel - -
------- -------
TOTAL 112,909 76,719
- -------------------------------------------------------------------------------
1) Detail of Other Outside Companies for 1998 is as follows:
----
Consulting Meals 22
Engineering 316
Underwriter Fees
Computer consulting 72
Temporary office services 1,677
Consulting (non financial) 18,985
Construction subcontractors 126
Other plant operations 5
Financial consulting 306
Subscriptions 62
Charges billed for audit & professional services 16
provide to various SERI projects
Operations and Maintenance 1,066
Other Services 25
Eliminate intercompany expenses
State Line Startup Charges
London Business Development Costs
Other Outside Co( agent fees, license renewals, etc.) 61,582
TOTAL 84,260
<PAGE>
27
ANNUAL REPORT OF SOUTHERN ENERGY RESOURCES, INC.
ORGANIZATION CHART OF SOUTHERN ENERGY RESOURCES, INC.
Tom Boren/President and CEO
Vance Booker/Vice President, Administration
Marce Fuller/Executive Vice President & CEO, SoCo Energy Marketing
Marks Towles/Director, Internal Auditing
Raymond D. Hill/Executive Vice President and Chief Financial Officer
Tommy Chisholm/Vice President and Corporate Secretary
Bill Holden/Vice President and Treasurer
J.R. Harris/Vice President, External Affairs
Bill Maner, III/Vice President
Rick Kuester/Managing Director & CEO, Consolidated Electric Power Asia
James Ward/Vice President and Controller
Richard Pershing/Executive Vice President, International Division
Paul Bowers/President & CEO, South Western Electricity of Bristol (SWEB)
Alan Harrelson/Vice President, Construction
Ron Leggett/Vice President, Power Generation
Rick Owen/Vice President, Operations & Development Caribbean
Gale Klappa/Senior Vice President & President, North America Group
Barney Rush/Vice President, SEI Europe, Inc.
Anne Cleary/Vice President, North American Business Development
Randy Harrison/CEO, Southern Energy California
Henry Coolidge/CEO, Southern Energy New England
Craig Lesser/CEO, Southern Energy New York
David Rozier/Vice President, Mid-Continent
David Gallaspy/Vice President
ORGANIZATION CHART OF SEI OPERADORA DE ARGENTINA, S.A.
J. William Holden, III/ President of the Board
Ricardo Falabella/Vice President of the Board
Mariano F. Grondona/Secretary of the Board
ORGANIZATION CHART OF SEI BETEILIGUNGS GmbH
Thomas G. Boren/Managing Director
Barney Rush/Managing Director
James A. Ward/Managing Director
ORGANIZATION CHART OF SEI ASIA
Thomas G. Boren/President
Raymond D. Hill/Vice President & Chief Financial Officer
James A. Ward/Treasurer
Tommy Chisholm/Secretary & Assistant Treasurer
Sam H. Dabbs, Jr./Assistant Secretary
Exhibit B-16
October 19, 1998
SOUTHERN COMPANY SERVICES, INC.
BY-LAWS
ARTICLE I
LOCATION OF PRINCIPAL OFFICE
OF THE CORPORATION
Section 1. The principal office of the corporation shall be
located at Birmingham, Jefferson County, Alabama; but the corporation may also
have offices in other counties, cities, and towns in the State of Alabama and in
such other places beyond the State of Alabama as the board of directors may from
time to time appoint or the business of the corporation may require.
ARTICLE II
SHAREHOLDERS' MEETINGS
PLACE OF MEETING
Section 1. All meetings of the shareholders shall be held at
the principal office of the corporation, except such meetings as the board of
directors or the holders of not less than one-tenth of all shares entitled to
vote thereat shall expressly determine shall be held elsewhere, in which case
meetings may be held upon notice as hereinafter provided at such other places
within or without the State of Alabama as may thus be fixed.
ANNUAL MEETING
Section 2. The annual meeting of the shareholders shall be
held on the first Monday in the month of May in each year if not a legal
holiday, and if a legal holiday then on the first subsequent day which is not a
legal holiday, when the shareholders entitled to vote shall elect by ballot a
board of directors to serve until the next annual meeting of shareholders,
subject to the provisions of Section 2 of Article III hereof, and may transact
such other business as may be brought before the meeting upon such notice as may
be required by statute or by these by-laws; provided, however, that the holder
of all the issued and outstanding capital stock of the corporation may fix
another day for such annual meeting of shareholders in any particular year by
delivering to the secretary of the corporation prior to the day for the holding
of such meeting as hereinabove provided, a statement signed by such holder
setting forth the date fixed by it pursuant hereto on which such annual meeting
shall be held.
SPECIAL MEETINGS
Section 3. Special meetings of the shareholders may be called
at any time by the chairman of the executive committee or by the chairman of the
board or by a vice-chairman of the board or by the president or by the board of
directors or by the executive committee or by the holders of not less than
one-tenth of all the shares entitled to vote thereat. No business may be
transacted at any such special meeting except that referred to in the notice, or
in a supplemental notice also given in compliance with the provisions hereof,
and except such business as may be germane or supplemental to that stated in
such notice or notices.
NOTICE OF MEETINGS
Section 4. Written notice of the place, day and hour of
holding all meetings shall, unless waived, be mailed or delivered personally to
each shareholder entitled to vote, at least ten but not more than fifty days
prior to the meeting, at his address as it appears on the stock transfer books
of the corporation, unless by statute other or further notice is required, and
in this event the required statutory notice shall be given; and, in the case of
special meetings, or meetings required by statute to be held for any special
purpose, or annual meetings at which special action is to be taken, the purpose
thereof shall be stated in the notice. The president, the board of directors, or
other office or persons calling the shareholders' meeting shall determine the
actual date, time and manner of delivery of the prescribed notice.
VOTING
Section 5. At each meeting of the shareholders each holder of
capital stock of record on the date of mailing of notice calling such meeting or
upon such other record date not more than fifty days and not less than ten days
prior to the date of the meeting as shall have been fixed by these by-laws or by
resolution of the board of directors, shall be entitled to one vote for each
share of capital stock standing in his name on the books of the corporation. Any
shareholder may vote in person or by proxy appointed by an instrument in writing
subscribed by such shareholder or by his duly authorized attorney-in-fact. The
proxy holder need not be a shareholder. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.
Upon the demand of any shareholder, the vote upon any question before the
meeting shall be by ballot. All questions shall be decided by plurality vote,
except as otherwise provided by law, by the certificate of incorporation or by
these by-laws.
QUORUM
Section 6. The holders of a majority of all shares of stock
issued and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business, except as otherwise provided by
law, by the certificate of incorporation, or by these by-laws. If, however, a
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time without notice other than
announcement at the meeting, until the requisite amount of voting stock shall be
present or represented. At such adjourned meeting at which the requisite amount
of voting stock shall be represented, any business may be transacted which might
have been transacted at the meting as originally notified. Every meeting of the
shareholders may be adjourned from time to time until its business is completed,
and except as provided herein or by applicable law, no notice need be given of
such adjourned meeting.
WAIVER OF NOTICE
Section 7. Whenever any notice is required to be given to any
shareholder, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether given before or after the time stated therein,
shall be equivalent to the giving of such notice.
ACTION WITHOUT A SHAREHOLDERS' MEETING
Section 8. Any action required or permitted to be taken at any
annual or special meeting of the corporation's shareholders, may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
all shares entitled to vote with respect to the subject matter thereof.
ARTICLE III
DIRECTORS
NUMBER AND TERM OF OFFICE
Section 1. The property and business of the corporation shall
be managed by its board of directors consisting of not less than three nor more
than eleven directors, who shall have such stock ownership, if any, as may be
necessary for qualification as such in accordance with the provisions of the
laws of Alabama then applicable. The number of directors of the corporation may
be increased or decreased from time to time by amendment of these by-laws in the
manner provided by law; provided, however, that no decrease shall have the
effect of shortening the term of any incumbent director.
Section 2. The directors shall be elected at the annual
meeting of the shareholders, and each director shall be elected to hold office
until the next annual meeting of shareholders; provided that in the event of
failure to hold such meeting or to hold such election at such meeting, such
election may be held at any special meeting of the shareholders called for that
purpose and the directors then in office shall continue in office until their
successors shall have been duly elected and qualified. if the shareholders at
such annual meeting or at any special meeting called for the election of
directors shall not elect the full board of directors at such election, the
directors elected may, subject to the provisions of Section 3 of this Article
III, elect the remaining directors in the manner provided therein for the
filling of vacancies. Any director of this corporation may resign at any time by
giving written notice to the present or the secretary of the corporation. Such
resignation shall take effect at the time specified therein; and, unless
otherwise provided therein, the acceptance of such resignation shall not be
necessary to make it effective.
VACANCIES
Section 3. In case of any vacancies in the board of directors
through any cause other than from an increase in the number of directors, the
remaining directors, even though less than a quorum, by a majority vote thereof,
may elect a successor or successors, and the director or directors so elected
shall hold office for the unexpired term in respect of which such vacancy
occurred.
COMPENSATION
Section 4. Directors, as such, shall not receive any stated
salary for such services, but may be repaid traveling and subsistence expenses
if any, incurred in attending any meeting, and if not paid regular compensation
by an affiliated company may receive a fee to be fixed by the board from time to
time for attendance at each regular or special meeting of the board. Nothing
herein contained shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
REMOVAL
Section 5. Any director of this corporation may be removed by
the affirmative vote or written direction, approval, or consent of the holders
of all the issued and outstanding capital stock of the corporation.
ARTICLE IV
BOARD OF DIRECTORS
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. The directors may hold their meetings and have one
or more offices, and may keep the books of the corporation within or without the
State of Alabama at such place or places as they may from time to time
determine, except such books and records as are required by law to be kept in
the State of Alabama.
REGULAR MEETINGS
Section 2. Regular meetings of the board may be held without notice at
such time and place as may from time to time be determined by the board.
SPECIAL MEETINGS
Section 3. Special meetings of the board shall be held
whenever called by direction of the chairman of the executive committee or of
the chairman of the board or of a vice-chairman of the board or of the president
or of one-third of the directors for the time being in office. The secretary
shall give notice of special meetings either (a) by mailing at least two days
before the meeting, or (b) by delivery or personal communication, either over
the telephone or otherwise, one day before the meeting, to each director.
TELEPHONIC MEETINGS
Section 4. Members of the board of directors or of any
committee designated thereby may participate in any meeting of the board or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating can hear each other at the same time
and participation by such means shall constitute presence in person at a
meeting.
QUORUM
Section 5. At all meetings of the board one-third of the total
number of directors, but not less than two directors, shall be necessary to
constitute a quorum for the transaction of business and the act of the majority
of the directors present at any meeting at which there is a quorum shall be the
act of the board of directors, except as may be otherwise specifically provided
by statute or by the certificate of incorporation or by these by-laws. If at any
meeting of the board there shall be less than a quorum present a majority of
those directors present may adjourn the meeting from time to time until a quorum
is obtained, and no further notice thereof need be given other than by
announcement at such meeting which shall be so adjourned.
GENERAL POWERS
Section 6. In addition to the powers and authority by these by-laws
expressly conferred on them, the board may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the certificate of incorporation of the corporation or by these by-laws directed
or required by be exercised or done by the shareholders.
SPECIAL POWERS
Section 7. Without prejudice to the general powers conferred
by preceding Section 6, the board of directors shall in addition thereto have
the following special powers:
(a) From time to time to make and change rules and
regulations, not inconsistent with these by-laws for
the management of the property and business of the
corporation;
(b) To purchase or otherwise acquire for the corporation
any property, rights, or privileges which the
corporation is authorized to acquire, at such prices
or consideration and generally on such terms and
conditions as they think fit; and at their discretion
to pay for the same either wholly or partly in money,
stock, or other securities or property of the
corporation;
(c) To sell, exchange, or otherwise dispose of any
property of the corporation less than all, for such
price or consideration, and generally on such terms
and conditions as they think fit; and at their
discretion to accept in whole in partial payment
therefor, money, stock, or other securities or
properties; provided, however, that a sale,
lease, mortgage, pledge, exchange, or other
disposition of all or substantially all of the
property and assets, with or without the good will of
the corporation, not made in the usual and regular
course of business shall be upon such terms and
conditions and for such consideration as may be
authorized in the manner prescribed by applicable
law, as the same may be amended or altered from time
to time;
(d) To appoint and at their discretion to remove or
suspend such subordinate officers, agents or
employees, permanently or temporarily, as they think
fit and to determine their duties and fix and from
time to time change their salaries or employments,
and to require bonds in such instances and in such
amounts and with such sureties as they think fit;
(e) To appoint any person or corporation to accept and
hold in trust for the corporation any property
belonging to the corporation or in which it is
interested, or for any other purpose, and to execute
all such deeds and instruments and perform such acts
as may be requisite in relation to any such trust;
(f) To determine who shall be authorized on behalf of the
corporation so sign bills, notes, receipts,
acceptances, endorsements, checks, releases,
contracts, and documents;
(g) To authorize the execution and delivery of notes and
other evidences of indebtedness of the corporation
for money borrowed or other indebtedness incurred by
the corporation; and to authorize the execution,
certification, delivery, and sale of the mortgage
bonds of the corporation, from time to time upon such
terms and conditions as the board may approve;
(h) To delegate any of the powers of the board in the
course of the current business of the corporation, to
any standing or special committee or to appoint any
person to be the agent of the corporation with such
powers and upon such terms as they think fit.
RECORD OF PROCEEDINGS
Section 8. The board of directors shall cause a record of
their proceedings and all directors' meetings to be properly kept by the
secretary of the corporation, or by a secretary pro tempore. The records shall
be verified by the signature of the person acting as secretary.
BOOKS OF ACCOUNT
Section 9. The board of directors shall cause regular and
correct books of account to be kept.
VOTING
Section 10. No member of the board shall bote on a question in
which he is interested otherwise than as shareholder, except in the election of
the president or other office or employee, or be present at the meeting while
the same is being considered, if requested by the chairman of the meeting or the
majority of those present to retire; no action, however, shall be taken on the
question unless after such retirement there be left a quorum in the meeting.
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES
EXECUTIVE COMMITTEE
Section 1. The board of directors may, and upon request by the
holder of the outstanding shares of the capital stock of the corporation (herein
sometimes referred to as the Shareholder) shall, by resolution passed by a
majority of the whole board in office designate not less than two of the
directors, including the chairman of the executive committee, to constitute an
executive committee, to hold office from their designation until the first
meeting of the board of directors following the next annual meeting of
shareholders. A majority of the members of the committee shall constitute a
quorum and the committee may establish rules of procedure for the conduct of its
business. The chairman of the executive committee shall act as chairman. During
the intervals between meetings of the board, the executive committee shall have
and may exercise all the powers of the board of directors in the management of
the property and the business of the corporation, and shall have power to
authorize the seal of the corporation to be affixed to all instruments that may
require it; and the specific authority in the by-laws for the executive
committee to exercise a particular power shall not be construed as a limitation
upon the authority of the committee to exercise the powers of the board in all
other instances; but the board of directors may from time to time limit the
exercise of such powers by the committee. Vacancies in the membership of the
committee shall be filled by the board of directors; but the chairman of the
executive committee may fill such vacancies pending the action of the board of
directors.
AUDIT COMMITTEE
Section 2. The board of directors may, by resolution adopted
by a majority of the whole board in office, designate no fewer than three
directors to constitute an audit committee. A majority of the members of the
audit committee shall constitute a quorum. The board of directors shall appoint
the chairman of the audit committee. The audit committee shall assist the
directors in fulfilling their responsibilities for financial reporting,
improving and maintaining financial controls, and periodically review the work
of the corporation's external and internal auditors, including, but not limited
to, the following activities:
(a) Recommend annually the selection of independent
auditors;
(b) Review the scope, timing, and fee of the independent
annual audit;
(c) Review the results of the independent annual audit,
any changes in accounting principles and practices,
any significant proposed adjustments, and any
unresolved disagreements with management concerning
accounting matters;
(d) Review the adequacy of the corporation's system of
internal controls;
(e) Ascertain that the independent auditors' and internal
auditors' recommendations to management have been
adequately considered and properly implemented;
(f) Review and approve the scope of the corporation's
annual internal audit plan, as well as the results of
the internal audit function; and
(g) Review procedures designed to identify any interests
of officers or employees which conflict with the
interests of the corporation.
OTHER STANDING COMMITTEES
Section 3. The board of directors may also, by resolution or
resolutions adopted by a majority of the whole board in office, designate one or
more other standing committees as it deems necessary and desirable. Each such
committee shall consist of at least two directors of the corporation and shall
have and may exercise the powers of the board of directors in the management of
the business and affairs of the corporation to the extent provided in such
resolution or resolutions and these by-laws. The board of directors shall
designate the name of and appoint the chairman of each such committee. A
majority of the members of each such committee shall constitute a quorum.
ELECTION OF COMMITTEE MEMBERS
Section 4. The members of the executive committee, the audit
committee, and the other standing committees shall be elected at the first
meeting of the board of directors following the annual meeting of shareholders
or as soon thereafter as is practicable. The members of all such committees
shall hold office until the meeting of the board of directors following the next
annual meeting of shareholders and until their respective successors are
elected. The board of directors shall have the power to fill vacancies in, to
change the membership of, and to dissolve any such committee.
MEETINGS AND MINUTES
Section 5. The executive committee and the other committees
shall meet at such time and place as their respective chairman may appoint.
Notice of each meeting of the executive committee and the other committees may
be given by telephone, telex or telecopy or in writing specifying the place,
day, and hour thereof. If given in writing, such notice may be served personally
at least one hour before such meeting or as otherwise provided in these by-laws.
The executive committee and each of the other standing committees shall maintain
regular minutes of their respective proceedings. All actions taken by the
executive committee, the audit committee or any of the other standing committees
shall be reported to the board of directors at its next succeeding meeting and
shall be subject to amendment, revision or alteration by the board of directors;
provided, however, that the rights or acts of third parties shall not be
affected by such amendment, revision or alteration. The members of all
committees shall be entitled to such fees and expenses as may be fixed by the
board of directors.
ARTICLE VI
OFFICERS
Section 1. At the first meeting of the board of directors
following the election of such board by the shareholders, the board of directors
shall elect a president, a secretary, and a treasurer. The board of directors at
such meeting or at any other meeting may, and upon request of the Shareholder
shall, elect either a chairman of the board or a chairman of the executive
committee, or both, and may also elect one or more vice-chairmen of the board,
one or more vice presidents, one or more assistant vice-presidents, a
comptroller and one or more assistant comptrollers, assistant secretaries and
assistant treasurers. Any two or more office may be filled by the same person.
The chairman of the executive committee, the chairman of the board, the
vice-chairman or vice-chairmen of the board and the president shall be chosen
from among the directors but the other offices need not be directors.
Section 2. The board of directors may appoint such other
subordinate officers and agents as it shall deem necessary, who shall have such
authority and shall perform such duties as from time to time shall be prescribed
by the board of directors or the executive committee or the chairman of the
executive committee or the chairman of the board or the president.
TERM OF OFFICE
Section 3. The officers of the corporation shall hold office
from their election, or such subsequent date as may be fixed by the board of
directors, until the first meeting of a board of directors following its
election by shareholders; provided, however, that in the event of failure to
hold an election of officers at such meeting of the board of directors, such
election may be held at any regular meeting or any special meeting of the
directors called for that purpose and the officers then in office shall continue
in office until such election shall have thus been held. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote or written direction, approval or consent of the holders of all
the issued and outstanding capital stock of the corporation. All officers,
agents and employees other than officers appointed by the board shall hold
office at the discretion of the officer appointing them or any senior officer,
but shall be subject to the removal by the board of directors, or the executive
committee at any time.
DUTIES OF OFFICERS MAY BE DELEGATED
Section 4. In case of the absence or inability to act of any
officer of the corporation and of any officer herein authorized to act in his
place, the board of directors or the executive committee or the chairman of the
executive committee or the chairman of the board or the president may delegate,
from time to time, the powers or duties, or any of them, of such officer to any
other officer, or to any director, or other person whom he may select.
CHAIRMAN OF THE EXECUTIVE COMMITTEE
Section 5. The chairman of the executive committee shall be in
charge of the formation of the general policies of the corporation. He shall
preside at all meetings of shareholders and of the executive committee at which
he is present, and shall have and may exercise all powers and duties specified
herein or incident to the position of chairman of the executive committee and
such other powers and duties as may be assigned to him from time to time by the
board of directors or by the executive committee. During any period for which a
chairman of the executive committee has not been elected by the board of
directors pursuant to Article VII, the powers and duties of the chairman of the
executive committee specified herein shall, subject to the board of directors
and the executive committee devolve upon and be exercised by the chairman of the
board.
CHAIRMAN OF THE BOARD AND VICE-CHAIRMAN
OF THE BOARD
Section 6. The chairman of the board shall preside at all
meetings of the board and shall have and may exercise such other powers and
duties as may be specified herein and as may be assigned to him from time to
time by the chairman of the executive committee or by the board of directors or
by the executive committee. A vice-chairman of the board shall have and may
exercise such powers and duties as may be assigned to him from time to time by
the chairman of the board or by the chairman of the executive committee or by
the board of directors or by the executive committee.
PRESIDENT
Section 7. The president, subject to the board of directors,
the chairman of the board, the executive committee, and the chairman of the
executive committee shall be the chief executive officer of the corporation and
shall have supervision and charge of the conduct of the affairs of the
corporation and shall have and may exercise all other powers and duties incident
to the position of president and such other powers and duties as may be assigned
to him from time to time by the chairman of the executive committee or by the
chairman of the board or by the board of directors or by the executive
committee. In the absence or inability to act of the chairman of the board, the
president shall have and may exercise the powers and duties of the chairman of
the board; subject, however, to the chairman of the executive committee, the
board of directors and the executive committee.
VICE-PRESIDENT
Section 8. A vice-president (any one or more of whom may be
designated by a supplementary title at the option of the board of directors)
shall perform such of the duties of the president as may be assigned to him from
time to time by the board of directors, by the executive committee, by the
chairman of the executive committee, by the chairman of the board, by a
vice-chairman of the board or by the president. In the absence or inability of
the president to act, other than as a consequence of a catastrophe wrought by
war affecting the facilities or personnel of the corporation, such
vice-president as shall have been designated by the board of directors for the
purpose, or in the event of the failure of the board of directors so to
designate, then the highest-salaried vice-president who is available, shall have
and possess all of the powers and discharge all of the duties of the president,
subject, however, to the board of directors, the executive committee, the
chairman of the executive committee, the chairman of the board, and the
vice-chairman or vice-chairmen of the board. In the absence or inability of the
president to act as the result of a catastrophe wrought by war affecting the
facilities or personnel of the corporation, the powers and duties of the
president shall, subject to the control of the board of directors, devolve
successively upon such other persons as shall have been designated in a
resolution adopted by the board of directors, and in accordance with the order
of succession set forth therein.
COMPTROLLER
Section 9. It shall be the duty of the comptroller to maintain
adequate records of all assets, liabilities, and accounting transactions of the
corporation; he shall have charge of the installation and supervision of all
accounting and statistical records, the preparation of all financial and
statistical statements and reports, and the supervision of the accounting
methods, systems and forms in use by all departments and shall perform such
other duties as may be assigned to him from time to time by the board of
directors, the executive committee, the chairman of the executive committee, the
chairman of the board, a vice-chairman of the board, the president, or a
vice-president.
SECRETARY
Section 10. The secretary shall, unless otherwise directed,
attend all sessions of the board and all meetings of the shareholders and act as
clerk thereof and record all votes and the minutes of all proceedings in a book
to be kept for that purpose, and shall perform like duties for standing
committees when required. He shall give or cause to be given notice of all
meetings of the shareholders and of the board of directors, and of standing
committees when required, and shall perform the duties usually incident to the
office of secretary and such other duties as may be prescribed by the board of
directors, the executive committee, the chairman of the executive committee, the
chairman of the board, a vice-chairman of the board or the president, under
whose supervision he shall act. He shall keep the stock ledger of the
corporation at the office of the corporation in the city of Birmingham, Alabama,
or at such other place as the board of directors may from time to time
determine. He shall keep the seal of the corporation in safe custody,and when
authorized, affix the same to any instrument requiring a seal and attest the
signature thereof when directed or required to do so.
TREASURER
Section 11. It shall be the duty of the treasurer to have the
care and custody of all the funds and securities of the corporation. He shall be
accountable for the receipts and disbursements of the funds of the corporation.
He shall endorse checks, drafts, and other instruments for the payment of money
for deposit or collection when necessary or proper and shall deposit the same to
the credit of the corporation in such depositaries as the board of directors may
designate; he shall perform all acts incident to the position of treasurer, and
such other duties as may be assigned to him from time to time by the board of
directors, the executive committee, the chairman of the executive committee, the
chairman of the board, a vice-chairman of the board, the president, or a
vice-president. He shall, when requested, pursuant to vote of the board of
directors, give a bond to the corporation conditioned for the faithful
performance of his duties, the expense of which shall be borne by the
corporations.
ASSISTANT VICE-PRESIDENTS, ASSISTANT COMPTROLLERS,
ASSISTANT SECRETARIES, AND ASSISTANT TREASURERS
Section 12. The assistant vice-presidents, assistant
comptrollers, assistant secretaries, and assistant treasurers shall perform any
of or all of the duties of the vice-president, comptroller, secretary, or
treasurer, as the case may be, and such other duties as may be assigned to them
from time to time.
ARTICLE VII
VACANCIES
Section 1. If the office of any officer or agent elected or
appointed by the board of directors becomes vacant for any reason, his
successor, who shall hold office for the unexpired term in respect of which such
vacancy occurred, may be elected by the board of directors or the executive
committee; but the chairman of the executive committee, the chairman of the
board, a vice-chairman of the board, or the president may fill any such vacancy
pending such action by the board of directors or the executive committee.
ARTICLE VIII
CERTIFICATES AND TRANSFERS OF STOCK
CERTIFICATES OF STOCK
Section 1. The certificates of stock of the corporation shall
be numbered and shall be entered on the stock certificate books of the
corporation as they are issued. They shall exhibit the holder's name and certify
the number and class of shares of stock owned by him in the corporation, and
shall be signed by the chairman of the board or a vice-chairman of the board or
the president or a vice-president and the secretary or an assistant secretary
and shall bear the corporate seal which may be imprinted thereon. No certificate
shall be issued unless the stock represented thereby is fully paid up.
ISSUANCE OF STOCK
Section 2. Stock of the corporation, of any class, may be
issued by the board of directors of the corporation from time to time for such
consideration as may be fixed from time to time by the board of directors up to
the total number of such shares of stock of the corporation at the time
authorized and unissued; provided, however, that shares having a par value shall
not be issued for a consideration less than the par value thereof.
TRANSFER OF STOCK
Section 3. The transfer of all classes of stock shall be made
and registered only by the person named in the certificate or by attorney
lawfully constituted in writing, upon surrender of such certificate; and the
corporation may keep in the hands of an agent or other person designated for
that purpose a true statement or book showing who are the holders of the stock
of the corporation and all transfers and hypothecations thereof; and the
corporation may by its board of directors designate one or more transfer agents
and registrars for its stock, who shall perform such duties in connection with
the record of the transfer and hypothecation thereof as may be required.
REGISTERED SHAREHOLDERS
Section 4. The corporation shall be entitled to treat each
holder of record of any share or shares of stock as the holder in fact thereof
and accordingly shall not be bound to recognize any equitable or other claim to
or interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by the
laws of Alabama. No transfer of stock shall be valid as against the corporation
or its shareholders for any purpose until it shall have been entered in the
stock book as required by these by-laws, by an entry showing from and to whom
transferred.
ARTICLE IX
INSPECTION OF BOOKS
Section 1. The board of directors shall determine from time to
time whether and if allowed when and under what conditions and regulations the
accounts and books of the corporation (except such as may be by statute
specifically open to inspection) or any of them shall be open to the inspection
of the shareholders or other persons interested therein, and the rights of
shareholders and others in this respect are and shall be restricted and limited
accordingly.
Section 2. The property and funds, books, correspondence and
papers of the corporation in the possession or control of any officer or agent
thereof, shall at times be subject to the inspection of the board of directors,
the executive committee or a committee appointed for the purpose at a general
meeting of the holders of the common stock. The minutes, including the
resolutions and proceedings of the board, shall be produced when required by a
majority of the shareholders at any meeting of shareholders.
ARTICLE X
SEAL
Section 1. The seal of the corporation shall be circular in
form and shall have inscribed thereon the name of the corporation and the year
of its incorporation, followed by the word "Alabama", and shall have the word
"Seal" inscribed in the center thereof.
ARTICLE XI
FISCAL YEAR
Section 1. The fiscal year shall begin with the first day of
January in each year, or such other date as may be hereafter approved by the
board of directors of the corporation.
ARTICLE XII
NOTICES
NOTICE BY MAIL
Section 1. Whenever under the provisions of these by-laws
notice is required to be given to any shareholder, officer, or director, it
shall not be construed to mean personal notice, but such notice may be given in
writing by depositing the same in the United States mail, addressed to the
shareholder at his address as it appears on the stock transfer books of the
corporation, or to the officer or director at his address on the corporation's
records, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be thus mailed.
WAIVER
Section 2. Whenever any notice is required to be given to any
shareholder or director under the provisions of the Constitution of Alabama, or
statute, or the certificate of incorporation, or these by-laws, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be equivalent to the giving of
such notice.
UNANIMOUS CONSENT TO ACTION
Section 3. Any action which by statute, or the certificate of
incorporation, or by-laws of the corporation may be taken by vote at a meeting
of the shareholders may be taken without a meeting if a consent and approval in
writing, setting forth the action so taken, shall be signed by the holders of
all of the issued and outstanding capital stock of the corporation entitled to
vote with respect to the subject matter thereof.
ARTICLE XIII
AMENDMENTS
Section 1. The by-laws of the corporation may be altered,
amended or repealed by new by-laws adopted at any duly convened meeting of the
board of directors, by the vote of a majority of the entire board then in
office, except as to any by-law defining a quorum, at shareholders' meetings.
Any by-law of the corporation may be altered, amended or repealed at any duly
convened meeting of the shareholders by the vote of the holders of the majority
of the stock issued and outstanding and entitled to vote at such meeting, in
accordance with the provisions of the laws of Alabama, the certificate of
incorporation, or other certificate filed pursuant to law, and these by-laws.
ARTICLE XIV
INDEMNIFICATION AND RELATED MATTERS
Section 1. Each person who is or was a director of the
corporation or officer or employee of the corporation holding one or more
positions of management through and inclusive of department managers (but not
positions below the level of department managers) (such positions being
hereinafter referred to as "Management Positions") and who was or is a party or
was or is threatened to be made a party to any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director of the
corporation or officer or employee of the corporation holding one or more
Management Positions, or is or was serving at the request of the corporation as
a director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall be indemnified by the corporation as a matter of right against any and all
expenses (including attorneys' fees) actually and reasonably incurred by him and
against any and all claims, judgments, fines, penalties, liabilities and amounts
paid in settlement actually incurred by him in defense of such claim, action,
suit or proceeding, including appeals, to the full extent permitted by
applicable law. The indemnification provided by this Section shall inure to the
benefit of the heirs, executors and administrators of such person.
Expenses (including attorneys' fees) incurred by a director of the
corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under this
Section or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
The corporation may purchase and maintain insurance at the expense of
the corporation on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or any person who is or was serving at the
request of the corporation as a director (or the equivalent), officer, employee,
agent or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability or expense
(including attorneys' fees) asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability or expense under
this Section or otherwise.
Without limiting the generality of the foregoing provisions of this
Section, no present or future director or officer of the corporation, or his
heirs, executors, or administrators, shall be liable for any act, omission,
step, or conduct taken or had in good faith, which is required, authorized, or
approved by any order or orders issued pursuant to the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any federal or state statute or
municipal ordinance regulating the corporation or its parent by reason of their
being holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
The foregoing rights shall not be exclusive of any other rights to
which any such director or officer or employee may otherwise be entitled and
shall be available whether or not the director or officer or employee continues
to be a director or officer or employee at the time of incurring any such
expenses and liabilities.
ARTICLE XV
SEVERABILITY AND RULES OF CONSTRUCTION
Section 1. If any word, clause or provision of the by-laws or
any indemnification made under Article XIV hereof shall for any reason be
determined to be invalid, the provisions of the by-laws shall not otherwise be
affected thereby but shall remain in full force and effect. The masculine
pronoun, as used in the by-laws, means the masculine and feminine wherever
applicable.
Exhibit B-22
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY, INC.
Southern Energy, Inc., a company organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies:
FIRST: The name of the Corporation is hereby changed from Southern
Energy, Inc. to Southern Energy Resources, Inc., and to effect such
change, the heading and Section One of the Certificate of Incorporation
of the Corporation be amended, insofar as they refer to the name of the
Corporation, to read Southern Energy Resources, Inc. in lieu of
Southern Energy, Inc. Such change shall be effective as of January 2,
1998.
SECOND: The sole shareholder of the Corporation has given its written
consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, duly authorized officer, has
hereunto set his hand as of the 30th day of December, 1997.
BY:
ITS: Vice President
Vance N. Booker
Exhibit B-23
Amended October 19, 1998
BY-LAWS
OF
SOUTHERN ENERGY RESOURCES, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the city of Atlanta, State of Georgia, at such place
as may be fixed from time to time by the board of directors, or at such other
place either within or without the State of Delaware as shall be designated from
time to time by the board of directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the
second Tuesday of May if not a legal holiday, and if a legal holiday, then on
the secular day following, at 10:00 A.M., or at such other date and time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting, at which they shall elect by a plurality vote a board
of directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chairman, the chairman of the executive
committee, or by the president and shall be called by the president or secretary
at the request in writing of a majority of the board of directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
At all elections of directors of the corporation each stockholder
having voting power shall be entitled to exercise the right of cumulative voting
as provided in the certificate of incorporation.
<PAGE>
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than three nor more than fifteen. The first board shall
consist of seven directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the board of directors
or by the stockholders at the annual meeting. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, then an election
of directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or
under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
chairman, the chairman of the executive committee, or president on two days'
notice to each director, if by mail, or one day's notice if given by telegram or
personal communication by telephone or otherwise; special meetings shall be
called by the president or secretary in like manner and on like notice on the
written request of one-third of the directors, in which case special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
Section 12. The board of directors may, and upon request by the
holder of the outstanding shares of the capital stock of the corporation shall,
by resolution passed by a majority of the whole board in office designate at
least two directors, including the chairman of the executive committee, to
constitute an executive committee, to hold office from their designation until
the first meeting of the board of directors following the next annual meeting of
shareholders. The committee may establish rules of procedure for the conduct of
its business, and the chairman of the executive committee shall act as chairman.
During the intervals between meetings of the board, the executive committee
shall have and may exercise all the powers of the board of directors in the
management of the property and the business of the corporation (except those
powers prohibited committees of the board as designated in Section 11. of this
Article), and shall have power to authorize the seal of the corporation to be
affixed to all instruments that may require it; and the specific authority in
the by-laws for the executive committee to exercise a particular power shall not
be construed as a limitation upon the authority of the committee to exercise the
powers of the board in all other instances; but the board of directors may from
time to time limit the exercise of such powers by the committee. Vacancies in
the membership of the committee shall be filled by the board of directors; but
the chairman of the executive committee may fill such vacancies pending the
action of the board of directors.
Section 13. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
<PAGE>
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the certificate of
incorporation or by-law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these by-laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by
the board of directors and shall be a president and a secretary. The board of
directors may also choose a chairman, a chairman of the executive committee, and
one or more vice-presidents and assistant secretaries. Any number of offices may
be held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide. The chairman and the chairman of the executive
committee shall be chosen from among the directors but the other officers need
not be directors.
Section 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose the officers.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
CHAIRMAN OF THE EXECUTIVE COMMITTEE
Section 5. The chairman of the executive committee shall be in
charge of the formation of the general policies of the corporation, shall, in
the absence of a chairman preside at all meetings of shareholders, shall preside
at all meetings of the executive committee, and shall have and may exercise all
powers and duties specified herein or incident to the position of chairman of
the executive committee and such other powers and duties as may be assigned to
him from time to time by the board of directors or by the executive committee.
During any period for which a chairman of the executive committee has not been
elected by the board of directors the powers and duties of the chairman of the
executive committee specified herein shall, subject to the board of directors
and the executive committee, devolve upon and be exercised by the president.
THE PRESIDENT
Section 6. The president shall be the chief executive officer
of the corporation, shall, in the absence of a chairman or a chairman of the
executive committee, preside at all meetings of the stockholders and in the
absence of a chairman preside at all meetings of the board of directors, shall
have general and active management of the business of the corporation and shall
see that all orders and resolutions of the board of directors are carried into
effect.
Section 7. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE CHAIRMAN
Section 8. The chairman shall preside at all meetings of the
stockholders and the board of directors and shall have such other duties and
responsibilities as may from time to time be assigned to him by the board of
directors.
THE VICE-PRESIDENTS
Section 9. In the absence of the president or in the event of
his inability or refusal to act, the vice-president (or in the event there be
more than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 10. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board
of directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have the authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 11. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation, by
the chairman or vice-chairman of the board of directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Certificates may be issued for partly paid shares and in such
case upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefor,
and the amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
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 or certificates, 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 certificates, or his
legal representative, to advertise the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. 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.
<PAGE>
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. 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 directors from time to time, in their absolute discretion, think
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 such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and condition of
the corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
<PAGE>
SEAL
Section 6. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION AND RELATED MATTERS
Section 7. Each person who is or was a director of the
corporation or officer or employee of the corporation holding one or more
positions of management through and inclusive of Project Managers and Business
Development Managers (but not positions below the level of such managers) (such
positions being hereinafter referred to as "Management Positions") and who was
or is a party or was or is threatened to be made a party to any threatened,
pending or completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 8. Expenses (including attorneys' fees) incurred by a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions with respect to the defense of any such claim,
action, suit or proceeding may be advanced by the corporation prior to the final
disposition of such claim, action, suit or proceeding, as authorized by the
board of directors in the specific case, upon receipt of an undertaking by or on
behalf of such person to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the corporation
under these by-laws or otherwise; provided, however, that the advancement of
such expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be indemnified by
the corporation.
Section 9. The corporation may purchase and maintain insurance
at the expense of the corporation on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or any person who is or
was serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 10. Without limiting the generality of the foregoing
provisions, no present or future director or officer of the corporation, or his
heirs, executors, or administrators, shall be liable for any act, omission,
step, or conduct taken or had in good faith, which is required, authorized, or
approved by any order or orders issued pursuant to the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any federal or state statute or
municipal ordinance regulating the corporation or its parent by reason of their
being holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 11. The foregoing rights shall not be exclusive of any
other rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 12. If any word, clause or provision of the by-laws or
any indemnification made under Article VII hereof shall for any reason be
determined to be invalid, the provisions of the by-laws shall not otherwise be
affected thereby but shall remain in full force and effect. The masculine
pronoun, as used in the by-laws, means the masculine and feminine wherever
applicable.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed
or new by-laws may be adopted by the stockholders or by the board of directors,
when such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
Exhibit B-27
Amended February 17, 1998
AMENDED AND RESTATED
BY-LAWS
OF
SOUTHERN COMPANY ENERGY SOLUTIONS, INC.
ARTICLE ONE
Offices
1.1 Registered Office and Agent. The Corporation shall maintain a
registered office and shall have a registered agent whose business office is
identical with such registered office.
1.2 Other Offices. The Corporation may have offices at such place or
places, within or without the State of Georgia, as the Board of Directors may
from time to time appoint or the business of the Corporation may require or make
desirable.
ARTICLE TWO
Shareholders' Meetings
2.1. Place of Meetings. Meetings of the shareholders may be held on the
call of the President at any place within or without the State of Georgia as set
forth in the notice thereof or in the event of a meeting held pursuant to waiver
of notice, as may be set forth in the waiver, or if no place is so specified, at
the principal office of the Corporation.
2.2. Annual Meetings. The annual meeting of shareholders shall be held
on such date within 120 days following the close of the Corporation's fiscal
year as shall be designated by the Board of Directors for the purpose of
electing directors and transacting any and all business that may properly come
before the meeting. At the annual meetings of the shareholders, the order of
business shall be as determined by the Chairman of the meeting.
2.3 Substitute Annual Meeting. In the event that such annual meeting is
not held on the day designated pursuant to Section 2.2, the Board of Directors
shall cause a meeting in lieu thereof to be held as soon as conveniently may be
thereafter, and any business transacted or elections held at such meeting shall
be as valid as if transacted or held at the annual meeting. Such subsequent
meeting shall be called in the same manner as provided for special shareholders'
meetings.
2.4 Special Meetings. Special meetings of the shareholders shall be
held at the principal office of the Corporation or at such other place as may be
designated in the notice of said meetings upon call of the Board of Directors or
of the Chairman of the Board of Directors or of the President, or of the
Secretary or at the request in writing of two or more directors or of
shareholders owning at least twenty-five percent (25%) of the issued and
outstanding capital stock of the Corporation entitled to vote thereat.
<PAGE>
2.5 Notice of Meetings. Unless waived as contemplated in Section 5.2 or
by attendance at the meeting, either in person or by proxy, for any purpose
other than to state, at the beginning of the meeting, an objection or objections
to the transaction of business, a written or printed notice of each
shareholders' meeting stating the place, day and hour of the meeting shall be
delivered not less than ten (10) days nor more than sixty (60) days before the
date thereof except as may otherwise be required by law, either personally or by
mail, by or at the direction of the President or Secretary or other person
calling the meeting, to each shareholder of record entitled to vote at such
meeting. In the case of an annual or substitute annual meeting, the notice of
the meeting need not state the purpose or purposes of the meeting unless the
purpose or purposes constitute a matter which the Georgia Business Corporation
Code (the "Code") requires to be stated in the notice of the meeting. In the
case of a special meeting, the notice of meeting shall state the purpose or
purposes for which the meeting is called. When a meeting is adjourned to another
time or place, unless after the adjournment the Board fixes a new record date
for the adjourned meeting as may be required pursuant to Section 2.9, it shall
not be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken and if at the adjourned meeting business which might
have been transacted on the original date of the meeting is transacted.
2.6 Quorum. At all meetings of the shareholders, the presence, in
person or by proxy, of the holders of more than one-half of the shares
outstanding and entitled to vote shall constitute a quorum. The shareholders at
a meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. If a quorum is not present to organize a meeting, the meeting may
be adjourned pursuant to Section 2.9.
2.7 Voting of Shares. Except as may otherwise be provided by the
Articles of Incorporation or by agreement of the shareholders pursuant to
Section 2.12 hereof, each outstanding share having voting rights shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. Voting on all matters shall be by voice vote or by show of hands
unless any qualified voter, prior to the voting on any matter, demands vote by
ballot, in which case each ballot shall state the name of the shareholder voting
and the number of shares voted by him, and if such ballot be cast by proxy, it
shall also state the name of such proxy. Cumulative voting shall not be
permitted. If a quorum is present, a majority of the shares outstanding and
entitled to vote which are represented at any meeting shall determine any matter
coming before the meeting unless a different vote is required by statute, by the
Articles of Incorporation or by these by-laws.
2.8 Proxies. A shareholder entitled to vote pursuant to Section 2.7 may
vote in person or by proxy executed in writing by the shareholder or by his
attorney-in-fact. A proxy shall not be valid after eleven (11) months from the
date of its execution, unless a longer period is expressly stated therein. If
the validity of any proxy is questioned it must be submitted to the Secretary of
the shareholders' meeting for examination or to a proxy officer or committee
appointed by the person presiding at the meeting. The Secretary of the meeting
or, if appointed, the proxy officer or committee, shall determine the validity
or invalidity of any proxy submitted, and reference by the Secretary in the
minutes of the meeting to the regularity of a proxy shall be received as prima
facie evidence of the facts stated for the purpose of establishing the presence
of a quorum at such meeting and for all other purposes.
<PAGE>
2.9 Adjournments. Any meeting of the shareholders, whether or not a
quorum is present, may be adjourned by the holders of a majority of the voting
shares represented at the meeting to reconvene at a specific time and place. It
shall not be necessary to give any notice of the reconvened meeting or of the
business to be transacted, if the time and place of the reconvened meeting are
announced at the meeting which was adjourned, except that if the meeting is
adjourned to a date more than one hundred twenty (120) days after the date of
the original meeting, the Board of Directors must fix a new record date and
provide notice of the adjourned meeting to persons who are shareholders of the
Corporation on the new record date. At any such reconvened meeting at which a
quorum is represented or present, any business may be transacted which could
have been transacted at the meeting which was adjourned.
2.10 Action of Shareholders Without a Meeting. Subject to such further
conditions as may be required by law, any action which may be taken at a meeting
of the shareholders may be taken without a meeting if a written approval and
consent, setting forth the action authorized, shall be signed by each of the
shareholders entitled to vote on the date on which the last such shareholder
signs such approval and consent and upon the filing of such approval and consent
with the officer of the Corporation having custody of its books and records.
Such approval and consent so filed shall have the same effect as a unanimous
vote of the shareholders at a special meeting called for the purpose of
considering the action authorized.
2.11 List of Shareholders. A complete list of the shareholders entitled
to vote at an ensuing meeting of shareholders arranged in alphabetical order
with the address of, and the number and class and series, if any, of voting
shares held by each shall be prepared by the Secretary, or other officer of the
Corporation having charge of the stock ledger, and shall be produced and kept
open at the time and place of the meeting and during the whole time of said
meeting shall be open to the examination of any shareholder. If the requirements
of this section have not been substantially complied with, the meeting shall, on
the reasonable demand of any shareholder in person or by proxy, be adjourned
until the requirements are complied with. If no such demand is made, failure to
comply with the requirements of this section shall not affect the validity of
any action take at such meeting.
2.12 Shareholders' Agreements. In addition to those shareholders'
agreements authorized by Official Code of Ga. Ann. Section 14-2-731 the holders
of all the outstanding and issued stock of the Corporation may enter into an
agreement or agreements among themselves, and the Corporation also, if so
elected, concerning the rights and privileges of respective classes of stock
(including but not limited to voting rights) and the transferability of the
stock of the Corporation, and such agreement, where not otherwise contrary to
law, shall be effective to establish the conditions of and methods of
transferability of the stock of the Corporation to the extent attempted by said
agreement.
ARTICLE THREE
The Board of Directors
3.1 General Powers. The business and affairs of the Corporation shall
be managed by the Board of Directors. In addition to the powers and authority
expressly conferred upon it by these by-laws, the Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, by any legal agreement among shareholders, by the
Articles of Incorporation or by these by-laws directed or required to be
exercised or done by the shareholders.
3.2 Number, Election and Term of Office. In accordance with these
by-laws or the Articles of Incorporation, the number of directors of the
Corporation shall be fixed by resolution of the shareholders from time to time,
or, if so authorized in the Articles of Incorporation, by the Board of
Directors. The number of directors may be changed from time to time by the
shareholders, or, if so authorized in the Articles of Incorporation, by the
Board of Directors. Except as provided in Section 3.4, the directors shall be
elected by the affirmative vote of a majority of the shares represented at the
annual meeting. Each director, except in case of death, resignation, retirement,
disqualification, or removal, shall serve until the next succeeding annual
meeting and until his successor shall have been elected and qualified.
3.3 Removal. Any director may be removed from office with or without
cause by the affirmative vote of the holders of a majority of the shares
entitled to vote at an election of directors. Removal action may be taken at any
shareholders' meeting with respect to which notice of such purpose has been
given, and a removed director's successor may be elected at the same meeting to
serve the unexpired term.
3.4 Vacancies. A vacancy occurring in the Board of Directors, except by
reason of removal of a director, may be filled for the unexpired term, and until
the shareholders shall have elected a successor, by affirmative vote of a
majority of the directors remaining in office though less than a quorum of the
Board of Directors.
3.5 Compensation. Directors may receive such compensation for their
services as directors as may from time to time be fixed by vote of the Board of
Directors or the shareholders. A director may also serve the Corporation in a
capacity other than that of director and receive compensation, as determined by
the Board of Directors, for services rendered in that other capacity.
3.6 Executive and other Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate an
executive committee and one or more other committees, each consisting of two or
more directors, each of which committees may act by a majority of its members.
Such executive committee shall have and may exercise all the powers of the Board
of Directors specified in these by-laws and otherwise existing in the management
of the business and affairs of the Corporation when the Board is not meeting;
and each other committee shall have such powers of the Board and otherwise as
are provided in the resolution establishing such committee. To the extent
specified by the Board of Directors or in the Articles of Incorporation, each
committee shall have and may exercise all the power of the Board of Directors
specified in these by-laws; however, notwithstanding anything to the contrary
herein, committees established by the Board shall have no power: (1) to approve
or propose to shareholders action that is required by the Code or these by-laws
to be approved by shareholders (including, but not limited to, fundamental
corporate changes such as merger, share exchange, dissolution and asset sales);
(2) to fill vacancies on the Board of Directors or any of its committees; (3) to
amend the Articles of Incorporation or these by-laws; or (4) to approve a plan
of merger not requiring shareholder approval.
ARTICLE FOUR
Meetings of the Board of Directors
4.1 Regular Meetings. A regular meeting of the Board of Directors shall
be held immediately after each annual meeting of shareholders or any meeting
held in lieu thereof. In addition, the Board of Directors may schedule other
meetings to occur at regular intervals throughout the year.
4.2 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President, or in his absence by the Secretary
of the Corporation, or by any two directors in office at that time.
4.3 Place of Meetings. Directors may hold their meetings at any place
within or without the State of Georgia as the Board of Directors may from time
to time establish for regular meetings or as is set forth in the notice of
special meetings or, in the event of a meeting held pursuant to waiver of
notice, as may be set forth in the waiver.
4.4 Notice of Meetings. No notice shall be required for any regularly
scheduled meeting of the directors of the Corporation. Unless waived as
contemplated in Section 5.2, the President or Secretary of the Corporation or
any director thereof shall give notice to each director of each special meeting
stating the time and place of the meeting. Such notice shall be given by mailing
a notice of the meeting at least four (4) days before the date of the meeting,
or by telephone, telegram, cablegram or personal delivery at least four (4)
hours before the date of the meeting. Notice shall be deemed to have been given
by telegram or cablegram at the time notice is filed with the transmitting
agency. Attendance by a director at a meeting shall constitute waiver of notice
of such meeting, except where the director states, at the beginning of the
meeting, his objection or objections to the transaction of business at the
meeting.
4.5 Quorum. At meetings of the Board of Directors, the presence of at
least one-half (1/2) of the directors then in office (but not less than two (2)
directors unless Georgia law otherwise permits) shall be necessary to constitute
a quorum for the transaction of business.
4.6 Vote Required for Action. Except as otherwise provided in this
section or by law, the act of a majority of the directors present at a meeting
at which a quorum is present at the time shall be the act of the Board of
Directors. Adoption, amendment and repeal of a by-law is provided for in Article
Eleven of these by-laws. Vacancies in the Board of Directors may be filled as
provided in Section 3.4 of these by-laws.
4.7 Action by Directors Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if a written consent thereto shall be signed by all the
directors and such written consent is filed with the minutes of the proceedings
of the Board. Such consent shall have the same force and effect as a unanimous
vote of the Board of Directors.
4.8 Adjournments. A meeting of the Board of Directors, whether or not a
quorum is present, may be adjourned by a majority of the directors present to
reconvene at a specific time and place. It shall not be necessary to give notice
of the reconvened meeting or of the business to be transacted, other than by
announcement at the meeting which was adjourned. At any such reconvened meeting
at which a quorum is present, any business may be transacted which could have
been transacted at the meeting which was adjourned.
4.9 Telephone Conference Calls. Unless otherwise prohibited by the
Articles of Incorporation, members of the Board of Directors, or any committee
designated by such Board, may participate in a meeting of such Board or
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 4.9 shall constitute
presence in person at such meeting.
ARTICLE FIVE
Notice and Waiver
5.1 Procedure. Whenever these by-laws require notice to be given to any
shareholder or director, the notice shall be given as prescribed in Official
Code of Ga. Ann. Section 14-2-41 and Sections 2.5 or 4.4 for any shareholder or
director, respectively. Whenever notice is given to a shareholder or director by
mail, the notice shall be sent first-class mail by depositing the same in a post
office or letter box in a postage prepaid sealed envelop addressed to the
shareholder or director at his address as it appears on the books of the
Corporation, and such notice shall be deemed to have been given at the time the
same is deposited in the United States mail.
5.2 Waiver. Notice of a meeting need not be given to any shareholder or
director who signs a waiver of such notice, in person or by proxy, either before
or after the meeting. Unless otherwise required by law or by these by-laws,
neither the business transacted nor the purpose of the meeting need be specified
in the waiver. Attendance of a shareholder or director at a meeting shall
constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when such shareholder or
director attends such meeting solely for the purpose of stating, at the
beginning of the meeting, any such objection or objections to the transaction of
business.
ARTICLE SIX
Officers
6.1 Number. The Executive Officers of the Corporation shall consist of
a Chairman of the Board, a President, one or more Vice Presidents as determined
or designated by the Board of Directors, a Secretary and a Treasurer. The Board
of Directors shall from time to time create and establish the duties of such
other officers and elect or provide for the appointment of such other officers
or assistant officers as it deems necessary for the efficient management of the
Corporation, but the Corporation shall not be required to have at any time any
officers other than a President, Secretary and Treasurer. In the event that no
Chairman of the Board is elected, the President shall perform all of the duties
and assume all of the responsibilities assigned to the office of Chairman of the
Board. Any two or more offices may be held by the same person, except the
offices of President and Secretary.
6.2 Election and Term. All Executive Officers shall be elected by the
Board of Directors and shall serve at the will of the Board of Directors and
until their successors have been elected and have qualified or until their
earlier death, resignation, removal, retirement or disqualification.
6.3 Compensation. The compensation of all Executive Officers of the
Corporation shall be fixed by the Board of Directors.
6.4 Removal. Any officer or agent elected by the Board of Directors may
be removed by the Board of Directors at any time with or without cause.
6.5 Powers and Duties. The Executive Officers of the Corporation shall
each have such powers and duties as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be conferred
by the Board of Directors. The Vice President or Vice Presidents, the Assistant
Secretary or Assistant Secretaries and the Assistant Treasurer or Assistant
Treasurers shall, in the order of their respective seniorities, in the absence
or disability of the President, Secretary or Treasurer, respectively, perform
the duties of such offices and shall generally assist the President, Secretary
or Treasurer, respectively.
Without limitation upon any of the foregoing:
(a) The Chairman of the Board shall be the chief executive
officer of the Corporation and shall have general supervision of the
affairs of the Corporation and full control of and responsibility for
said affairs. He shall preside at the meetings of shareholders and at
the meetings of the Board of Directors. The President shall have the
powers and duties of the Chairman at all times in the absence of such
Chairman.
(b) The President shall be the chief operational officer of the
Corporation and shall have general supervision of the day-to-day
affairs of the Corporation.
(c) The Secretary shall issue notices for and keep minutes of
all corporate meetings and shall have charge of the corporate seal and
of all corporate books, stock books and other like records of the
Corporation.
(d) The Treasurer shall have custody and control of all funds
and of all financial records of the Corporation.
(e) Except as is otherwise required by Official Code of Ga.
Ann. Section 14-2-1201, the Board of Directors by resolution and
without shareholder approval may authorize any officer of officers of
the Corporation to negotiate and execute contracts to buy, sell, lease
or exchange or otherwise dispose of any and all of the real or personal
property of the Corporation, and to negotiate and enter into loans to
be secured by notes, pledges, deeds to secure debt, mortgages and/or
other instruments encumbering the property of the Corporation.
6.6 Additional Powers and Duties. In addition to the foregoing
especially enumerated powers and duties, the several officers of the Corporation
shall have such other powers and duties as are provided for them in these
by-laws or as may, from time to time, be prescribed by the Board of Directors or
the Executive Committee or the Chairman of the Board.
6.7 Bonds. The Board of Directors may by resolution require any or all
of the officers, agents or employees of the Corporation to give bonds to the
Corporation, with sufficient surety or sureties, conditioned on the faithful
performance of the duties of their respective offices or positions, and to
comply with such other conditions as may from time to time be required by the
Board of Directors.
6.8 Reimbursement by Officers. Any payments made to an officer of the
Corporation such as salary, commission, bonus, interest or rent, or
entertainment expense incurred by him, which shall be disallowed in whole or in
part as a deductible expense by the Internal Revenue Service, shall be
reimbursed by such officer to the Corporation to the full extent of such
disallowance. It shall be the duty of the Board of Directors to enforce payment
of each such amount disallowed. In lieu of payment by the officer, subject to
the determination of the Board of Directors, proportionate amounts may be
withheld from his future compensation payments until the amount owed to the
Corporation has been recovered.
ARTICLE SEVEN
Dividends
7.1 Share Dividends. Unless otherwise provided in the Articles of
Incorporation, shares may be issued as a share dividend pro rata and without
consideration to the shareholders of the Corporation or to the shareholders of
one or more classes or series. Shares of one class or series may not be issued
as a share dividend in respect of another class or series unless authorized by
the Articles of Incorporation or unless a majority of the votes entitled to be
cast by the class or series to be issued approve the issue or unless there are
no issued and outstanding shares of the class or series to be issued.
7.2 Distribution to Shareholders. The Board of Directors shall not
authorize any payment of any dividend or any distribution to the shareholders of
the Corporation if such dividend or distribution would prevent the Corporation
from paying and discharging its debts as they become due in the usual course of
business or if the Corporation's total assets would be less than the sum of the
total liabilities plus the amount that would be needed should the Corporation be
dissolved at the time of the distribution to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights would be superior to
those shareholders receiving the distribution.
ARTICLE EIGHT
Shares
8.1 Authorization and Issuance of Shares. The par value and the maximum
number of shares of any class of the Corporation which may be issued and
outstanding shall be as set forth from time to time in the Articles of
Incorporation of the Corporation. The Board of Directors may increase or
decrease the number of issued and outstanding shares of the Corporation within
the maximum authorized by the Articles of Incorporation and the minimum required
by the Articles of Incorporation.
8.2 Share Certificates. Interest of each shareholder shall be evidenced
by a certificate or certificates representing shares of the Corporation which
shall be in such form as the Board of Directors may from time to time adopt in
accordance with Georgia law. Share certificates shall be consecutively numbered,
shall be in registered form, and shall indicate the date of issue and all such
information shall be entered on the Corporation's books. Each certificate shall
be signed by the President, or other chief executive officer, or a Vice
President and the Secretary or an Assistant Secretary and shall be sealed with
the seal of the Corporation or a facsimile thereof; provided, however, that
where such certificate is signed by a transfer agent, or registered by a
registrar other than the Corporation itself or an employee of the Corporation,
the signature of any such officer may be facsimile. In case any officer or
officers who shall have signed or whose facsimile signature shall have been
placed upon a share certificate shall have ceased for any reason to be such
officer or officers of the Corporation before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if the
person or persons who signed such certificate or whose facsimile signature shall
have been used thereon had not ceased to be such officer or officers.
8.3 Rights of Corporation with Respect to Registered Owners. Prior to
due presentation for transfer of registration of its shares, the Corporation may
treat the registered owner of the shares as the person exclusively entitled to
vote such shares, to receive any dividend or other distribution with respect to
such shares, and for all other purposes; and the Corporation shall not be bound
to recognize any equitable or other claim to or interest in such shares on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
8.4 Transfer of Shares. Transfers of shares shall be made upon the
transfer books of the Corporation, kept at the office of the transfer agent
designated to transfer the shares, only upon direction of the person named in
the certificate, or by an attorney lawfully constituted in writing; and before a
new certificate is issued, the old certificate shall be surrendered for
cancellation or, in the case of a certificate alleged to have been lost, stolen
or destroyed, the provisions of Section 8.5 of these by-laws shall have been
complied with.
8.5 Lost, Stolen or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require and
shall, if the Board of Directors so requires, give the Corporation a bond of
indemnity in form and amount, and with one or more sureties satisfactory to the
Board of Directors, as the Board of Directors may require, whereupon an
appropriate new certificate may be issued in lieu of the one alleged to have
been lost, stolen or destroyed.
8.6 Fixing of Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to received payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose, the
Board of Directors may fix in advance a date as the record date, such date to be
not more than 70 days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken.
8.7 Record Date if None Fixed. If no record date is fixed, as provided
in Section 8.6 of these by-laws, then the record date for any determination of
shareholders which may be proper or required by law, shall be the date on which
notice is mailed, in the case of a shareholders' meeting; the date on which the
Board of Directors approves a resolution declaring a dividend, in the case of a
payment of a dividend; and the date on which any other action, the consummation
of which requires a determination of shareholders, is to be taken.
ARTICLE NINE
Indemnification and Interested Parties
9.1 Indemnification
(a) The Corporation shall indemnify its officers and directors
for those amounts authorized under Article 8 Part 5 of the Code; provided,
however, indemnification shall only be made upon compliance with the
requirements of such statutory provisions and only in those circumstances in
which indemnification is authorized under those provisions; provided further,
however, that the Corporation may indemnify a director pursuant to Section
14-2-856 of the Code without shareholder approval.
(b) The Corporation may purchase and maintain insurance on
behalf of its officers and directors against any liability asserted against such
persons and incurred by such persons in any capacity, or arising out of such
persons' status as described in Code Section 14-2-851, whether or not the
Corporation would have the power to indemnify such persons against such
liability under the laws of the State of Georgia.
(c) The Corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding provided for
hereunder in advance of a final disposition of the proceeding if the director
submits to the Secretary of the Corporation a written request which complies
with the requirements set forth in Code Section 14-2-853. The Secretary of the
Corporation shall promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that such director has requested
indemnification, and the determination of such director's entitlement to
indemnification shall be made within a reasonable time after the receipt of such
written request by the Board of Directors.
(d) The indemnification and advancement of expenses provided by
or granted pursuant to this Section 9.1 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.
9.2 Interested Directors and Officers.
(a) No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers or have a financial
interest, shall be enjoined, set aside or give rise to an award of damages or
other sanctions, in an action by a shareholder or by or in the right of the
Corporation, on the grounds of an interest in the transaction of the director or
any person with whom or which he has a personal, economic, or other association,
if:
(1) such transaction is approved by the directors pursuant to Code
Section 14- 2-862;
(2) such transaction is approved by the shareholders pursuant to Code
Section 14-2-863; or
(3) the transaction, judged in the circumstances at the time of the
commitment, is established to have been fair to the Corporation.
(b) Except when the Board consists of less than three (3)
directors, a majority (but not less than two) of all the "qualified directors"
(as such term is defined in Section 14-2-862 of the Code) on the Board, or on
the committee thereof, shall constitute a quorum for purposes of action that
complies with Section 9.2(a)(1) of these by-laws. Director's action that
otherwise complies with the Code and these by-laws is not affected by the
presence or vote of a director who is not a "qualified director."
<PAGE>
ARTICLE TEN
Miscellaneous
10.1 Inspection of Books and Records, The Board of Directors shall have
power to determine which accounts, books and records of the Corporation shall be
open to the inspection of shareholders, except such as may by law be
specifically open to inspection, and shall have power to fix reasonable rules
and regulations not in conflict with the applicable law for the inspection of
accounts, books and records which by law or by determination of the Board of
Directors shall be open to inspection.
10.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal
year of the Corporation and to change the same from time to time as it deems
appropriate, but unless otherwise so determined shall begin on the first day of
January in each year and shall end on the last day of December in the same year.
10.3 Seal. The seal of the Corporation shall consist of an impression
bearing the name of the Corporation around the perimeter and the word "Seal" and
such other information, including the year of incorporation, in the center
thereof as is desired. In lieu thereof, the Corporation may use an impression or
writing bearing the words "CORPORATE SEAL" enclosed in parentheses or scroll,
which shall also be deemed the seal of the Corporation.
10.4 Annual Statements. Not later than four months after the close of
each fiscal year, and in any case prior to the next annual meeting of
shareholders, the Corporation shall prepare (a) a balance sheet showing in
reasonable detail the financial condition of the Corporation as of the close of
its fiscal year, and (b) a profit and loss statement showing the results of its
operations during its fiscal year. Upon receipt of written request, the
Corporation promptly shall mail to any shareholder of record a copy of the most
recent such balance sheet and profit and loss statement.
10.5 Execution of Documents. No attestation by the Secretary or an
Assistant Secretary shall be necessary to make any contract, conveyance or other
document valid and legally binding which has been executed by and on behalf of
the Corporation by an officer or officers thereunto duly authorized in the
manner provided for in these by-laws.
ARTICLE ELEVEN
Amendments
11.1 Power to Amend By-Laws. The Board of Directors shall have power to
alter, amend or repeal these by-laws or adopt new by-laws, but any by-laws
adopted by the Board of Directors may be altered, amended or repealed, and new
by-laws adopted by the shareholders. The shareholders may prescribe that any
by-law or by-laws adopted by them shall not be altered, amended or repealed by
the Board of Directors.
11.2 Conditions. Action taken by the shareholders with respect to
by-laws shall be taken by an affirmative vote of a majority of all shares
entitled to elect directors, and action by the Board of Directors with respect
to by-laws shall be taken by an affirmative vote of a majority of all directors
then holding office.
I hereby certify that the foregoing Amended and Restated By-Laws were
duly adopted by the Board of Directors of the Corporation as of June 1, 1994.
-------------------------------------
Tommy Chisholm, Secretary
Exhibit B-35
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SEI HOLDINGS, INC.
SEI Holdings, Inc., a company organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies:
FIRST: The name of the Corporation is hereby changed from SEI Holdings,
Inc. to Southern Energy, Inc., and to effect such change, the heading
and Section One of the Certificate of Incorporation of the Corporation
be amended, insofar as they refer to the name of the Corporation, to
read Southern Energy, Inc. in lieu of SEI Holdings, Inc. Such change
shall be effective as of January 2, 1998.
SECOND: The sole shareholder of the Corporation has given its written
consent to said amendment in accordance with the provisions of Section
228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, duly authorized officer, has
hereunto set his hand as of the 30th day of December, 1997.
BY:
ITS: Assistant Secretary
Sam H. Dabbs
Exhibit B-36
October 19, 1998
SOUTHERN ENERGY, INC.
* * * * *B Y- L A W S* * * **
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware. Section 2. The corporation may also
have offices at such other places both within and without the State of Delaware
as the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
<PAGE>
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
<PAGE>
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 5. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 6. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
<PAGE>
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
<PAGE>
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. The corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person 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
such 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 or 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 or
her conduct was unlawful.
Section 2. The corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if he or she acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 3. To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1. and 2., or in defense of
any claim, issue or matter therein, such individual shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
Section 4. Any indemnification under Sections 1. and 2. (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, officer,
employee or agent is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 1. and 2. Such
determination shall be made (1) 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 (2) 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 (3) by the stockholders.
Section 5. Expenses (including attorneys' fees) incurred by an officer
or director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may 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 such individual is not entitled to be
indemnified by the corporation as authorized in this Section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
Section 6. The indemnification and advancement of expenses provided by
this Article VII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in such individual's official capacity and as to action in
another capacity while holding such office.
Section 7. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liability under the provisions of this
section.
Section 8. For purposes of this Article VII, 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, officers and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article VII with
respect to the resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate existence had continued.
Section 9. For purposes of this Article VII, references to "other
enterprises" shall include employee benefit plans; 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,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article VII.
Section 10. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article VII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing by-laws were duly adopted by the
Board of Directors of the Corporation on April 20, 1993.
/s/ Scott A. Hudson [SEAL]
Assistant Secretary
I hereby certify that the foregoing amended and restated by-laws
reflect all amendments duly adopted by the Board of Directors of the Corporation
through October 19, 1998.
/s/ Neil J. Ginn [SEAL]
Assistant Secretary
Exhibit B-57
SOUTHERN ENERGY FINANCE COMPANY, INC
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
Directors of the Corporation on December 11, 1996.
[SEAL]
Assistant Secretary
Exhibit B-59
EPZ LEASE, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
Directors of the Corporation on December 10, 1996.
[SEAL]
Secretary
Exhibit B-67
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY VENTURES, INC.
I.
The name of the corporation is Southern Energy Ventures, Inc. (the
"Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation. The initial Board of
Directors shall consist of three (3) members, whose names are Thomas G. Boren,
S. Marce Fuller, James A. Ward. The mailing address for each of those members is
900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Bryan, Troutman Sanders LLP, 600 Peachtree Street N.E., Suite 5200, Atlanta,
Georgia 30308-2216
------------------------------------------
Jane C. Bryan, Incorporator
Exhibit B-68
B Y L A W S
OF
SOUTHERN ENERGY VENTURES, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
Directors of the Corporation on .
[SEAL]
Secretary
Exhibit B-69
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY SOUTHWEST INVESTMENTS, INC.
I.
The name of the corporation is Southern Energy Southwest Investments,
Inc. (the "Corporation").
II.
The initial registered agent of the Corporation in the State of
Delaware shall be Corporation Service Company, whose office is located at 1013
Centre Road, Wilmington, New Castle County, Delaware 19805.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Bryan, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200, Atlanta,
Georgia 30308-2216.
------------------------------------------
Jane C. Bryan, Incorporator
Exhibit B-70
SOUTHERN ENERGY SOUTHWEST INVESTMENTS, INC.
B Y L A W S
* * * * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of three (3) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors (or, if the board of directors has neither met to elect officers,
nor elected officers by unanimous written consent in lieu of a meeting, by the
incorporator) and shall be at a minimum a president, secretary and treasurer.
The board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken in good faith, which is required, authorized, or approved by any
order or orders issued pursuant to the Public Utility Holding Company Act of
1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Incorporator of the Corporation on September 3, 1998.
Jane C. Gravitt, Incorporator
Exhibit B-71
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY TEXAS (G.P.), INC.
I.
The name of the corporation is Southern Energy Texas (G.P.), Inc. (the
"Corporation").
II.
The initial registered agent of the Corporation in the State of
Delaware shall be Corporation Service Company, whose office is located at 1013
Centre Road, Wilmington, New Castle County, Delaware 19805.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Bryan, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200, Atlanta,
Georgia 30308-2216.
------------------------------------------
Jane C. Bryan, Incorporator
Exhibit B-72
SOUTHERN ENERGY TEXAS (G.P.), INC.
B Y L A W S
* * * * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken in good faith, which is required, authorized, or approved by any
order or orders issued pursuant to the Public Utility Holding Company Act of
1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Incorporator of the Corporation as of September 3, 1998.
Jane C. Bryan, Incorporator
Exhibit B-73
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY HUDSON VALLEY INVESTMENTS, LTD.
I.
The name of the corporation is Southern Energy Hudson Valley
Investments, Ltd. (the "Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington New Castle County,
Delaware 19801-1297. The initial registered agent of the Corporation at such
address shall be The Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Marc M.
O'Brien, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200,
Atlanta, Georgia 30308-2216
------------------------------------------
Marc M. O'Brien, Incorporator
Exhibit B-74
B Y L A W S
OF
SOUTHERN ENERGY HUDSON VALLEY INVESTMENTS, LTD.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of three (3) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
<PAGE>
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Directors of the Corporation on November 17, 1998.
Sam H. Dabbs, Jr., Secretary
[SEAL]
Exhibit B-75
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY NEW YORK G.P., INC.
I.
The name of the corporation is Southern Energy New York G.P., Inc. (the
"Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington New Castle County,
Delaware 19801-1297. The initial registered agent of the Corporation at such
address shall be The Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Marc M.
O'Brien, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200,
Atlanta, Georgia 30308-2216
------------------------------------------
Marc M. O'Brien, Incorporator
Exhibit B-76
B Y L A W S
OF
SOUTHERN ENERGY NEW YORK G.P., INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
<PAGE>
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Directors of the Corporation on November 17, 1998.
Tommy Chisholm, Secretary
[SEAL]
Exhibit B-77
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SEI TEXAS, L.P.
In connection with the formation of a Delaware limited partnership
pursuant to ss.17-201 of the Delaware Code, the undersigned hereby certifies as
follows:
1. The name of the limited partnership shall be SEI Texas, L.P. (the
"Limited Partnership").
2. The address of the registered office of the Limited Partnership is
1013 Centre Road, Wilmington, New Castle County, Delaware 19805-1297. The name
of the initial agent for service of process at such address is Corporation
Service Company.
3. The name and business address of the general partner of the Limited
Partnership is Southern Energy Texas (G.P.), Inc. The mailing address for the
general partner is 900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338.
IN WITNESS WHEREOF, the undersigned, as sole general partner of the
Limited Partnership, has caused its duly authorized representative to execute
this Certificate of Limited Partnership as of the 28th day of January, 1999.
Southern Energy Texas (G.P.), Inc., General Partner
By: James A. Ward, Vice President
Exhibit B-78
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY CALIFORNIA, INC.
I.
The name of the corporation is Southern Energy California, Inc. (the
"Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation. The initial Board of
Directors of the corporation shall consist of one (1) member, whose name shall
be James A. Ward.
The mailing address of Mr. Ward is 900 Ashwood Parkway, Suite 500,
Atlanta, Georgia 30308.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Robert
C. Marshall, Esq., Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite
5200, Atlanta, Georgia 30308-2216
Robert C. Marshall, Esq., Incorporator
Exhibit B-79
B Y L A W S
OF
SOUTHERN ENERGY CALIFORNIA, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Directors of the Corporation on November 24, 1998.
Secretary
SEAL
Exhibit B-80
CERTIFICATE OF FORMATION
SOUTHERN ENERGY CALIFORNIA, L.L.C.
A LIMITED LIABILITY COMPANY
I.
The name of the limited liability company is Southern Energy
California, L.L.C. (the "LLC").
II.
The initial registered agent of the LLC shall be Corporation Service
Company which is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
III.
A member, a manager, an agent, or an employee of the LLC is not
personally liable for the debts, obligations, or liabilities of the LLC, whether
arising in contract, tort, or otherwise, or for the acts or omissions of any
other member, manager, agent, or employee of the LLC.
Dated: January 22, 1999
Jane C. Bryan, Authorized Person
Exhibit B-81
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY BAY AREA INVESTMENTS, INC.
I.
The name of the corporation is Southern Energy Bay Area Investments,
Inc. (the "Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation. The initial Board of
Directors of the corporation shall consist of one (1) member, whose name shall
be James A. Ward.
The mailing address of Mr. Ward is 900 Ashwood Parkway, Suite 500,
Atlanta, Georgia 30308.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Robert
C. Marshall, Esq., Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite
5200, Atlanta, Georgia 30308-2216
Robert C. Marshall, Esq., Incorporator
Exhibit B-82
B Y L A W S
OF
SOUTHERN ENERGY BAY AREA INVESTMENTS,INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Directors of the Corporation on November 24, 1998.
Secretary
SEAL
Exhibit B-83
Amended December 14, 1998
B Y L A W S
OF
SEI STATE LINE, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than nine (9). The initial board
shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly amended by the
Directors of the Corporation on December 14, 1998.
[SEAL]
Assistant Secretary
Exhibit B-84
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY EUROPE INVESTMENTS, LTD.
I.
The name of the corporation is Southern Energy Europe Investments, Ltd.
(the "Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Bryan, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200, Atlanta,
Georgia 30308-2216.
------------------------------------------
Jane C. Bryan, Incorporator
Exhibit B-85
B Y L A W S
OF
SOUTHERN ENERGY EUROPE INVESTMENTS, LTD.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of four (4) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
incorporator of the Corporation on December 17, 1998.
Jane C. Bryan, Incorporator
[SEAL]
Exhibit B-86
CERTIFICATE OF FORMATION
OF
SOUTHERN ENERGY LOVETT, L.L.C.
A LIMITED LIABILITY COMPANY
I.
The name of the limited liability company is Southern Energy Lovett,
L.L.C. (the "LLC").
II.
The initial registered agent of the LLC shall be Corporation Service
Company which is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
III.
The LLC shall be managed by its members.
IV.
A member, a manager, an agent, or an employee of the LLC is not
personally liable for the debts, obligations, or liabilities of the LLC, whether
arising in contract, tort, or otherwise, or for the acts or omissions of any
other member, manager, agent, or employee of the LLC.
Dated:
Signed by:
Marc M. O'Brien, Authorized Person
Exhibit B-87
CERTIFICATE OF FORMATION
OF
SOUTHERN ENERGY BOWLINE, L.L.C.
A LIMITED LIABILITY COMPANY
I.
The name of the limited liability company is Southern Energy Bowline,
L.L.C. (the "LLC").
II.
The initial registered agent of the LLC shall be Corporation Service
Company which is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
III.
The LLC shall be managed by its members.
IV.
A member, a manager, an agent, or an employee of the LLC is not
personally liable for the debts, obligations, or liabilities of the LLC, whether
arising in contract, tort, or otherwise, or for the acts or omissions of any
other member, manager, agent, or employee of the LLC.
Dated:
Signed by:
Marc M. O'Brien, Authorized Person
Exhibit B-88
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY HOLLAND, LTD.
I.
The name of the corporation is Southern Energy Holland, Ltd. (the
"Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Bryan, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200, Atlanta,
Georgia 30308-2216.
------------------------------------------
Jane C. Bryan, Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
SOUTHERN ENERGY HOLLAND, LTD.
The Undersigned, being the Sole Incorporator of Southern Energy
Holland, Ltd.. (the "Corporation"), a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
1. That the Certificate of Incorporation of the Corporation is hereby
amended in that the name of the Corporation is changed from
SOUTHERN ENERGY HOLLAND, LTD. to SOUTHERN ENERGY NETHERLANDS, LTD.
To effect this change, the heading and Article I of the
Certificate of Incorporation of the Corporation are hereby
amended, insofar as they refer to the name of the Corporation, to
read SOUTHERN ENERGY NETHERLANDS, LTD. in lieu of SOUTHERN ENERGY
HOLLAND, LTD.
2. That the Certificate of Incorporation of the Corporation is hereby
further amended to change the registered office of the Corporation
from Corporation Service Company to Delaware Corporate Management
Services and to change the registered agent of the Corporation
from Corporate Service Company to William R. Bechstein. To effect
this change Article II of the Certificate of Incorporation of the
Corporation is amended to read as follows:
II.
The registered office of the Corporation in the State of Delaware is
Delaware Corporate Management Services, Inc., 1403 Foulk Road, Suite 102,
Wilmington, Delaware 19803. The registered agent at such address is William R.
Bechstein.
3. That the Corporation has not received any payment for any of its stock.
4. That the amendment of the Certificate of Incorporation of the
Corporation herein certified has been duly adopted in accordance
with the provisions of Section 241 of the General Corporation Law
of the State of Delaware.
Executed on December 15, 1998.
SOUTHERN ENERGY HOLLAND, LTD.
By: Jane C. Bryan, Sole Incorporator
Exhibit B-89
B Y L A W S
OF
SOUTHERN ENERGY NETHERLANDS, LTD.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of four (4) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Incorporator of the Corporation on December 16, 1998.
Jane C. Bryan, Incorporator
Exhibit B-90
CERTIFICATE OF INCORPORATION
OF
SOUTHERN ENERGY NETHERLANDS MANAGEMENT COMPANY, INC.
I.
The name of the corporation is Southern Energy Netherlands Management
Company, Inc. (the "Corporation").
II.
The initial registered office of the Corporation in the State of
Delaware shall be located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297. The initial registered agent of the Corporation at such
address shall be Corporation Service Company.
III.
The purpose or purposes for which the Corporation is organized shall be
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
IV.
The Corporation shall be authorized to issue One Thousand (1,000)
shares of One Dollar ($1.00) par value capital stock, all of which shall be
designated "Common Stock." The shares of Common Stock shall have unlimited
voting rights and shall be entitled to receive all of the net assets of the
Corporation upon dissolution or liquidation.
V.
The affairs of the Corporation shall be managed by a Board of Directors
and as otherwise provided in the Bylaws of the Corporation. The initial Board of
Directors of the corporation shall consist of three (3) members, whose names are
as follows:
Thomas G. Boren
Richard J. Pershing
James A. Ward
The mailing address of the directors is 900 Ashwood Parkway, Suite 500, Atlanta,
Georgia 30338.
VI.
The Corporation shall have perpetual duration.
VII.
The Board of Directors of the Corporation shall have the power to
adopt, amend and repeal the Bylaws of the Corporation.
VIII.
To the fullest extent that the General Corporation Law of Delaware, as
it exists on the date hereof or as it may hereafter be amended, permits the
limitation or elimination of the liability of directors, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of duty of care or other duty as a director. No
amendment to or repeal of this Article 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
amendment or repeal.
IX.
The name and address of the Incorporator of the Corporation is Jane C.
Gravitt, Troutman Sanders L.L.P., 600 Peachtree Street N.E., Suite 5200,
Atlanta, Georgia 30308-2216
------------------------------------------
Jane C. Gravitt, Incorporator
Exhibit B-91
B Y L A W S
OF
SOUTHERN ENERGY NETHERLANDS MANAGEMENT COMPANY, INC.
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
<PAGE>
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than ten (10). The initial board
shall consist of three (3) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
bylaws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these bylaws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the bylaws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the bylaws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the bylaws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
I hereby certify that the foregoing Bylaws were duly adopted by the
Directors of the Corporation on January , 1999.
Secretary
[SEAL]
Exhibit B-92
SOUTHERN ENERGY - ASIA, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
<PAGE>
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than seven (7). The initial board
shall consist of two (2) directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation
<PAGE>
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock or to adopt a
certificate of ownership and merger. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
<PAGE>
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
<PAGE>
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
Directors of the Corporation on October 9, 1996
[SEAL]
Secretary
Exhibit B-93
Amended February 17, 1998
POWERCALL, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than fifteen (15). The initial
board shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
sole Director of the Corporation on September 9, 1996.
[SEAL]
Secretary
Exhibit B-94
Amended February 17, 1998
SOUTHERN TELECOM, INC.
* * * * *
B Y L A W S
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and without the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held at such place as may be fixed from time to time by the
board of directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the board of directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at such date
and time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a board of directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of
incorporation or in an agreement among shareholders as permitted under the
General Corporation Law of the State of Delaware (the "Delaware Corporation
Law"), each stockholder shall at every meeting of the stockholders be entitled
to one vote in person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be voted on after
three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one (1) nor more than fifteen (15). The initial
board shall consist of one (1) director. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of the
board of directors or by the stockholders at the annual meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. 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, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by
the directors then in office.
Section 3. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the president
on 2 days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
Section 8. At all meetings of the board a majority of the 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. 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 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to adopt a certificate of ownership and
merger. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director of the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, 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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be at a minimum a president, secretary and treasurer. The
board of directors may also choose one or more vice-presidents, assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more
vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualified. Any officer elected or appointed by
the board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. In the absence of the president or in the event of his
inability or refusal to act, the vice-president (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation
as may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Section 15. Each officer of the corporation shall have the authority to
execute and deliver any and all applications and filings as are necessary to be
filed with federal, state and local regulatory agencies on behalf of the
corporation.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the corporation by, the chairman or vice-chairman of the board of
directors, or the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Delaware Corporate Law Sections 151, 156, 202(a)
or 218(a) or a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates 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 or certificates or uncertificated
shares, 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 certificates, or his legal representative, to advertise
the same in such manner as it 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) 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.
REGISTERED STOCKHOLDERS
Section 6. 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 the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. Each person who is or was a director of the corporation or
officer or employee of the corporation holding one or more positions of
management through and inclusive of Project Managers and Business Development
Managers (but not positions below the level of such managers) (such positions
being hereinafter referred to as "Management Positions") and who was or is a
party or was or is threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director of the corporation or officer or employee of the corporation holding
one or more Management Positions, or is or was serving at the request of the
corporation as a director, alternate director, officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the corporation as a
matter of right against any and all expenses (including attorneys' fees)
actually and reasonably incurred by him and against any and all claims,
judgments, fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding, including
appeals, to the full extent permitted by applicable law. The indemnification
provided by this section shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 2. Expenses (including attorneys' fees) incurred by a director
of the corporation or officer or employee of the corporation holding one or more
Management Positions with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the corporation prior to the final disposition
of such claim, action, suit or proceeding, as authorized by the board of
directors in the specific case, upon receipt of an undertaking by or on behalf
of such person to repay such amount unless it shall ultimately be determined
that such person is entitled to be indemnified by the corporation under these
by-laws or otherwise; provided, however, that the advancement of such expenses
shall not be deemed to be indemnification unless and until it shall ultimately
be determined that such person is entitled to be indemnified by the corporation.
Section 3. The corporation may purchase and maintain insurance at the
expense of the corporation on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation as a director (or the equivalent),
alternate director, officer, employee, agent or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability or expense (including attorneys' fees) asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability or expense under these by-laws or otherwise.
Section 4. Without limiting the generality of the foregoing provisions,
no present or future director or officer of the corporation, or his heirs,
executors, or administrators, shall be liable for any act, omission, step, or
conduct taken or had in good faith, which is required, authorized, or approved
by any order or orders issued pursuant to the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any federal or state statute or municipal
ordinance regulating the corporation or its parent by reason of their being
holding or investment companies, public utility companies, public utility
holding companies, or subsidiaries of public utility holding companies. In any
action, suit, or proceeding based on any act, omission, step, or conduct, as in
this paragraph described, the provisions hereof shall be brought to the
attention of the court. In the event that the foregoing provisions of this
paragraph are found by the court not to constitute a valid defense on the
grounds of not being applicable to the particular class of plaintiff, each such
director and officer, and his heirs, executors, and administrators, shall be
reimbursed for, or indemnified against, all expenses and liabilities incurred by
him or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or had in
good faith as in this paragraph described. Such expenses and liabilities shall
include, but shall not be limited to, judgments, court costs, and attorneys'
fees.
Section 5. The foregoing rights shall not be exclusive of any other
rights to which any such director or officer or employee may otherwise be
entitled and shall be available whether or not the director or officer or
employee continues to be a director or officer or employee at the time of
incurring any such expenses and liabilities.
Section 6. If any word, clause or provision of the by-laws or any
indemnification made under Article VII hereof shall for any reason be determined
to be invalid, the provisions of the by-laws shall not otherwise be affected
thereby but shall remain in full force and effect. The masculine pronoun, as
used in the by-laws, means the masculine and feminine wherever applicable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. 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.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
I hereby certify that the foregoing By-Laws were duly adopted by the
sole Director of the Corporation on September 9, 1996.
[SEAL]
Secretary
Exhibit B-95
CERTIFICATE OF FORMATION
SOUTHERN ENERGY CANAL III, L.L.C.
A LIMITED LIABILITY COMPANY
I.
The name of the limited liability company is Southern Energy Canal III,
L.L.C. (the "LLC").
II.
The initial registered agent of the LLC shall be Corporation Service
Company which is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
III.
The LLC shall be managed by its members.
IV.
A member, a manager, an agent, or an employee of the LLC is not
personally liable for the debts, obligations, or liabilities of the LLC, whether
arising in contract, tort, or otherwise, or for the acts or omissions of any
other member, manager, agent, or employee of the LLC.
Dated:
Signed by:
Jane C. Bryan, Authorized Person
Exhibit B-96
CERTIFICATE OF LIMITED PARTNERSHIP
OF
SOUTHERN ENERGY CENTRAL TEXAS, L.P.
In connection with the formation of a Delaware limited partnership
pursuant to ss.17-201 of the Delaware Code, the undersigned hereby certifies as
follows:
1. The name of the limited partnership shall be Southern Energy Central
Texas, L.P. (the "Limited Partnership").
2. The address of the registered office of the Limited Partnership is
1013 Centre Road, Wilmington, New Castle, Delaware 19805-1297. The name of the
initial agent for service of process at such address is Corporation Service
Company.
3. The name and business address of the general partner of the Limited
Partnership is Southern Energy Texas (G.P.), Inc. The mailing address for the
general partner is 900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute this Certificate of Limited Partnership as of the
30th day of December, 1998.
SOUTHERN ENERGY CENTRAL TEXAS, L.P.
By Its Partners:
Southern Energy Southwest Investments, Inc., Limited Partner
By: David R. Rozier, Jr., Vice President
Southern Energy Texas (G.P.), Inc., General Partner
By: Randall E. Harrison, Vice President
Exhibit B-97
CERTIFICATE OF FORMATION
OF
SOUTHERN ENERGY NY-GEN, L.L.C.
A LIMITED LIABILITY COMPANY
I.
The name of the limited liability company is Southern Energy NY-Gen,
L.L.C. (the "LLC").
II.
The initial registered agent of the LLC shall be Corporation Service
Company which is located at 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
III.
The LLC shall be managed by its members.
IV.
A member, a manager, an agent, or an employee of the LLC is not
personally liable for the debts, obligations, or liabilities of the LLC, whether
arising in contract, tort, or otherwise, or for the acts or omissions of any
other member, manager, agent, or employee of the LLC.
Dated:
Signed by:
Marc M. O'Brien, Authorized Person
Exhibit D-2
INCOME TAX ALLOCATION AGREEMENT
FIFTY-SIXTH AMENDMENT
Mississippi Power Services, Inc. was incorporated in 1998 and is wholly owned by
Mississippi Power Company. Mississippi Power Services, Inc. does hereby declare
and agree to the terms and conditions provided in the Income Tax Allocation
Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Mississippi Power Services, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
FIFTY-SEVENTH AMENDMENT
Southern Energy Carbontronics, Inc. was incorporated in 1998 and is wholly owned
by Southern Energy Finance Company, Inc. Southern Energy Carbontronics, Inc.
does hereby declare and agree to the terms and conditions provided in the Income
Tax Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Carbontronics, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
FIFTY-EIGHTH AMENDMENT
Southern Energy Caribe, Ltd. was incorporated in 1998 and is wholly owned by
Southern Energy International, Inc. Southern Energy Caribe, Ltd. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Caribe, Ltd.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
FIFTY-NINTH AMENDMENT
Southern Energy Europe, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy International Inc. Southern Energy Europe, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Europe, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTIETH AMENDMENT
SEI Wisconsin Holdings, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy North America, Inc. SEI Wisconsin Holdings, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SEI Wisconsin Holdings, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-FIRST AMENDMENT
SEI New England, Inc. was incorporated in 1998 and is wholly owned by Southern
Energy North America, Inc. SEI New England, Inc. does hereby declare and agree
to the terms and conditions provided in the Income Tax Allocation Agreement
dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SEI New England, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-SECOND AMENDMENT
SEI New England Holding Corp. was incorporated in 1998 and is wholly owned by
Southern Energy North America, Inc. SEI New England Holding Corp. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SEI New England Holding Corp.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTH-THIRD AMENDMENT
SE China Investments, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy International, Inc. SE China Investments, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SE China Investments, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-FOURTH AMENDMENT
Southern Energy Ventures, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy North America, Inc. Southern Energy Ventures, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Ventures, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-FIFTH AMENDMENT
Southern Energy Asia Ventures, Inc. was incorporated in 1998 and is wholly owned
by Southern Energy - Asia, Inc. Southern Energy Asia Ventures, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Asia Ventures, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-SIXTH AMENDMENT
SEI Brazil Holdings, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy International, Inc. SEI Brazil Holdings, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SEI Brazil Holdings, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-SEVENTH AMENDMENT
SEI South America, Inc. was incorporated in 1998 and is wholly owned by Southern
Energy International, Inc. SEI South America, Inc. does hereby declare and agree
to the terms and conditions provided in the Income Tax Allocation Agreement
dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998 and subsequent years.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST SEI South America, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-EIGHTH AMENDMENT
Mobile Development Company was incorporated in 1998 and is wholly owned by
Southern Energy North America, Inc. Mobile Development Company does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Mobile Development Company
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SIXTY-NINTH AMENDMENT
Southern Energy Europe Investments, Inc. was incorporated in 1998 and is wholly
owned by Southern Energy Europe Inc. Southern Energy Europe Investments, Inc.
does hereby declare and agree to the terms and conditions provided in the Income
Tax Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Europe Investments, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTIETH AMENDMENT
Southern Energy Bay Area Investments, Inc. was incorporated in 1998 and is
wholly owned by Southern Energy North America, Inc. Southern Energy Bay Area
Investments, Inc. does hereby declare and agree to the terms and conditions
provided in the Income Tax Allocation Agreement dated December 29, 1981, as
amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Bay Area Investments, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-FIRST AMENDMENT
Southern Energy California, Inc. was incorporated in 1998 and is wholly owned by
Southern Energy North America, Inc. Southern Energy California, Inc. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy California, Inc.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-SECOND AMENDMENT
Southern Energy Netherlands, Ltd. was incorporated in 1998 and is wholly owned
by Southern Energy Europe, Inc. Southern Energy Netherlands, Ltd. does hereby
declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Netherlands, Ltd.
___________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-THIRD AMENDMENT
Southern Energy Southwest Investments, Inc. was incorporated in 1998 and is
wholly owned by Southern Energy North America, Inc. Southern Energy Southwest
Investments, Inc. does hereby declare and agree to the terms and conditions
provided in the Income Tax Allocation Agreement dated December 29, 1981, as
amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Southwest Investments, Inc.
__________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-FOURTH AMENDMENT
Southern Energy Texas (G.P.), Inc. was incorporated in 1998 and is wholly owned
by Southern Energy North America, Inc. Southern Energy Texas (G.P.), Inc. does
hereby declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Texas (G.P.), Inc.
__________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-FIFTH AMENDMENT
Southern Energy New York G.P., Inc. was incorporated in 1998 and is wholly owned
by Southern Energy North America, Inc. Southern Energy New York G.P., Inc. does
hereby declare and agree to the terms and conditions provided in the Income Tax
Allocation Agreement dated December 29, 1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy New York G.P., Inc.
__________________________________ BY: _________________________________
<PAGE>
INCOME TAX ALLOCATION AGREEMENT
SEVENTY-SIXTH AMENDMENT
Southern Energy Hudson Valley Investments, Ltd. was incorporated in 1998 and is
wholly owned by Southern Energy North America, Inc. Southern Energy Hudson
Valley Investments, Ltd. does hereby declare and agree to the terms and
conditions provided in the Income Tax Allocation Agreement dated December 29,
1981, as amended on April 19, 1988.
Effective Date
This Agreement is effective for the Consolidated Tax reflected on the
Consolidated Tax Return for 1998.
IN WITNESS HEREOF, this Agreement has been executed, as of the _______day of
February, 1999.
ATTEST Southern Energy Hudson Valley Investments, Inc.
__________________________________ BY: _________________________________
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
<S> <C> <C>
Southern Energy, Inc. (formerly SEI Holdings, Inc.) (Holdings)
(100% - The Southern Company)
Southern Energy Resources, Inc. (formerly Southern Energy, Inc.) (Project Development)
(100% - Holdings)
SEI Operadora de Argentina, S.A. (FUCO)
(99.99% - Southern Energy Resources, Inc.; .01% - Holdings)
Southern Electric International Asia, Inc. (Special Purpose Subsidiary - Project Development)
(100% - Southern Energy Resources, Inc.)
Southern Electric International, GmbH (Special Purpose Subsidiary
- Project Development) (100% - Southern Energy Resources, Inc.)
Asociados de Electricidad, S.A. (Intermediate Subsidiary)
(100% Holdings)
Southern Electric International, Inc. (Intermediate Subsidiary)
(100 % Holdings)
Southern Electric, Inc. (EWG)
(100% - Holdings)
Southern Energy North America, Inc. (Domestic Holdings)
(100% - Holdings)
Mobile Development Company (Special Purpose Subsidiary) (100% -
Southern Energy North America, Inc.)
Southern Energy Ventures, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Trading and Marketing, Inc. (Energy-Related Company)
(100% - Southern Energy Ventures, Inc.)
SC Energy Ventures, Inc. (Intermediate Subsidiary)
(100% - Southern Energy Trading and Marketing, Inc.)
Southern Company Energy Marketing L.P.
(Energy-Related Company) (59.4% - SC Energy
Ventures, Inc.; 39.6% - Domestic Corporation; 1% -
Southern Company Energy Marketing G.P., L.L.C.)
Southern Company Retail Energy Marketing L.P. (Energy-Related)
(99% - Southern Company Energy Marketing L.P.; 1% - Southern Company
Energy Marketing G.P., L.L.C.)
Southern Energy Retail Trading and Marketing, Inc. (Energy-Related Company)
(100% - Southern Energy Trading and Marketing, Inc.)
SC Ashwood Holdings, Inc. (Intermediate Subsidiary)
(100% - Southern Energy Ventures, Inc.)
Southern Company Energy Marketing G.P., L.L.C. (Intermediate Subsidiary)
(60% - SC Ashwood Holdings, Inc.; 40% - Domestic Corporation)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy North-America, Inc. - CONTINUED
SEI Birchwood, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Birchwood Power Partners, LP (EWG)
(50% - SEI Birchwood, Inc.; 50% - Domestic Corporation)
Greenhost, Inc. (Authorized by Order of 11/20/96))
(50% - SEI Birchwood, Inc.; 50% - Domestic Corporation)
SEI Hawaiian Cogenerators, Inc. (EWG)
(100% - Southern Energy North America, Inc.)
Southern Energy-Cajun, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Louisiana Generating, LLC (Intermediate Subsidiary)
(40% - Southern Energy-Cajun, Inc.; 60% - Domestic Corporations)
SEI State Line, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
State Line Holding Corporation (Intermediate Subsidiary)
(100% - SEI State Line, Inc.)
State Line Energy, L.L.C. (EWG)
(60% - SEI State Line, Inc.; 40% - State Line Holding Corporation)
SEI New England Holding Corp. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
SEI New England, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Newington Energy, L.L.C. (Special Purpose Subsidiary)
(50% - SEI New England Holding Corp; 50% - SEI New England Inc.)
Southern Energy New England, L.L.C. (EWG)
(50% - SEI New England Holding Corp; 50% - SEI New England Inc.)
Southern Energy Canal, L.L.C. (EWG)
(99% - Southern Energy New England LLC; 1% - SEI New England Holding Corp)
Southern Energy Kendall, L.L.C. (EWG)
(99% - Southern Energy New England LLC; 1% - SEI New England Holding Corp)
Southern Energy Canal III, L.L.C. (Special Purpose
Subsidiary) (50% - SEI New England, Inc.; 50% - SEI New
England Holding Corp.)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy North-America, Inc. - CONTINUED
SEI Wisconsin Holdings, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
SEI Wisconsin, L.L.C. (EWG)
(100 %- SEI Wisconsin Holding, Inc.)
Southern Energy Texas (G.P.), Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Southwest Investments, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Wichita Falls, L.P. (Special Purpose Subsidiary)
(99% - Southern Energy Southwest Investments, Inc.; 1% Southern Energy Texas (G.P.), Inc.)
Southern Energy New York, G.P., Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Hudson Valley Investments, Ltd. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Bowline, L.L.C. (Special Purpose Subsidiary)
(99% - Southern Energy Hudson Valley Investments, Inc.; 1% - Southern Energy
New York, G.P., Inc.)
Southern Energy Lovett, L.L.C. (Special Purpose Subsidiary)
(99% - Southern Energy Hudson Valley Investments, Inc.; 1% - Southern Energy
New York, G.P., Inc.)
Southern Energy NY-Gen, L.L.C. (Special Purpose
Subsidiary) (99% - Southern Energy Hudson Valley
Investments, Inc.; 1% - Southern Energy New York,
G.P., Inc.)
Southern Energy Bay Area Investments, Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Golden States Holding Inc. (Intermediate Subsidiary)
(100% - Southern Energy North America, Inc.)
Southern Energy Delta, L.L.C. (Special Purpose Subsidiary)
(50% - Southern Energy Bay Area Investments; 50% - Southern Energy Golden
States Holdings, Inc.)
Southern Energy Potrero, L.L.C. (Special Purpose Subsidiary)
(50% Southern Energy Bay Area Investments; 50% Southern Energy Golden
States Holdings, Inc.)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. (Foreign Holdings)
(100% - Holdings)
Southern Energy do Brazil Ltda. (Special Purpose Subsidiary - Project Development)
(99.85% - Southern Energy International, Inc.; .15% - Southern Energy Resources, Inc.)
Southern Energy - Asia, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
Southern Energy Asia Ventures, Inc. (Intermediate Subsidiary)
(100% Southern Energy -Asia, Inc.)
Consolidated Electric Power Asia Limited (Special Purpose Subsidiary) (NOTE 1)
(90.0% - Southern Energy - Asia, Inc.; 10% Southern Energy Asia Ventures, Inc.) (NOTE 2)
Hopewell Energy International Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Southern Energy Holdings Philippines, Inc. (Intermediate Subsidiary)
(85.11% - Hopewell Energy International
Limited; 9.16% - CEPA Mobile Power Systems
(BVI) Corporation; 5.73% - Navotas II
Holdings (BVI) Corp; .000009% - Hopewell
Project Management Company Limited)
Hopewell Power (Philippines), Corp. (FUCO)
(87.22% - Southern Energy Holdings Philippines, Inc; 12.78% Foreign Company)
Hopewell Mobile Power Systems Corp. (FUCO)
(100% - Southern Energy Holdings Philippines, Inc.)
CEPA Services Corp. (Special Purpose Subsidiary)
(100% - Hopewell Mobile Power Systems Corp.)
Hopewell Tileman (Philippines) Corp. (FUCO)
(100% - Southern Energy Holdings Philippines, Inc.)
Southern Energy Limited (Intermediate Subsidiary)
(80% - Consolidated Electric Power Asia Limited; 20% Foreign Company)
Guangdong Guanghope Power Co., Ltd (FUCO)
(40% - Southern Energy Limited; 60% Foreign Company)
Southern Energy China, Ltd. (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy - Asia, Inc. - CONTINUED
Southern Energy Asia Ventures, Inc. - CONTINUED
Consolidated Electric Power Asia Limited - CONTINUED
Hopewell Project Management Company Limited
(Intermediate Subsidiary) (100% - Consolidated
Electric Power Asia Limited )
Southern Energy Project Holdings Philippines, Inc. (Special Purpose Subsidiary)
(100%- Hopewell Project Management Company Limited)
Hopewell Energy (Philippines) Corp. (FUCO)
(60.1%- Hopewell Project Management Company, Limited;
29.9% Southern Energy Holdings Philippines, Inc.; 10% -Foreign Company)
Navotas II (BVI) Holdings Corp (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Mobile Power Systems (BVI) Corporation (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Guangxi Energy Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Eastern Power Plant Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Construction (Hong Kong) Limited (Special Purpose Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Sual Construction Corporation (Special Purpose Subsidiary)
(100% - CEPA Construction Limited)
CEPA Construction Resources (BVI) (Special Purpose Subsidiary)
(100% - CEPA Construction Limited)
CEPA Procurement (BVI) Ltd (Intermediate Subsidiary)
(100% - CEPA Construction Limited)
CEPA Procurement (Delaware) L.L.C. (Special Purpose Subsidiary)
(51% - CEPA (BVI) Procurement Limited; 49% CEPA Sourcing Limited)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy - Asia, Inc. - CONTINUED
Southern Energy Asia Ventures Inc. - CONTINUED
Consolidated Electric Power Asia Limited - CONTINUED
CEPA Construction (Hong Kong) Limited - CONTINUED
CEPA Sourcing (BVI) Ltd (Intermediate Subsidiary)
(100% - CEPA Construction Limited)
Pagbilao Shipping Corporation (Special Purpose Subsidiary)
(100% - CEPA Construction Limited)
CEPA International Finance Corporation (Intermediate Subsidiary)
(100% Consolidated Electric Power Asia Limited)
Excellent Crown Limited (Special Purpose Subsidiary)
(100% - CEPA International Finance Corporation)
CEPA Pangasinan Electric Limited (Intermediate Subsidiary)
(100% Consolidated Electric Power Asia Limited)
Pangasinan Electric Corporation (FUCO)
(96.9% - CEPA Pangasinan Electric Limited;
3.1% - Commonwealth Development Corporation)
CEPA Pakistan (BVI) Limited (Intermediate Subsidiary)
(100% Consolidated Electric Power Asia Limited)
CEPA Energy Pakistan Limited (FUCO)
(100% - CEPA Pakistan Limited)
CEPA Nominee (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Thailand (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA India (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Investment (Mauritius) Limited (Intermediate Subsidiary)
(100% - CEPA India (BVI) Limited)
Consolidated Electric Power Asia Limited Limited (India) Private Limited (FUCO)
(100% - CEPA Investment (Mauritius) Limited)
<PAGE>
05/03/99, 3:41 PM
25
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy - Asia, Inc. - CONTINUED
Southern Energy Asia Ventures Inc. - CONTINUED
Consolidated Electric Power Asia Limited - CONTINUED
CEPA Operations, (Hong Kong) Limited (Special Purpose Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Operations (Philippines) Corp. (Special Purpose Subsidiary)
(100% - CEPA Operations, Limited)
CEPA Project Management and Engineering (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Fuels Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Marsford Investments Pte Ltd. (Intermediate Subsidiary)
(100% - beneficially owned by CEPA Fuels Limited)
Allied Queensland Coalfields, Ltd (Special Purpose Subsidiary)
(95.17% - CEPA Fuels Limited; 4.83% - Marsford Investments Ptd Ltd))
Aberdare Colliers Pty Limited (Special Purpose Subsidiary)
(100% - Allied Queensland Coalfields, Ltd)
New Whitwood Collieries Pty Ltd. (Special Purpose Subsidiary)
(100% - Aberdare Collieries Pty Ltd.)
Riverview Coal Terminal Pty Ltd. (Special Purpose Subsidiary)
(100% - Aberdare Collieries Pty Ltd.)
AQC (Kogan Creek) Pty Limited (Special Purpose Subsidiary)
(100% - Allied Queensland Coalfields, Ltd)
AQC (Wilkie Creek) Pty Limited (Special Purpose Subsidiary)
(100% - AQC (Kogan Creek) Pty Limited)
Baralaba Coal Pty Limited (Special Purpose Subsidiary)
(100% - Allied Queensland Coalfields Limited)
Lemon Grove Investment Pty Limited (Special Purpose Subsidiary)
(100% - Allied Queensland Coalfields Limited)
Tiaro Coal Pty Limited (Special Purpose Subsidiary)
(100% - Allied Queensland Coalfields Limited)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy - Asia, Inc. - CONTINUED
Southern Energy Asia Ventures, Inc. - CONTINUED
Consolidated Electric Power Asia Limited - CONTINUED
Philippine Power and Infrastructure Holding Corporation (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Finance Corporation (Special Purpose Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Hopewell Energy International (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Energy International (BVI) Limited (Special Purpose Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Power China (BVI) Limited (Intermediate Subsidiary
(100% - Consolidated Electric Power Asia Limited)
CEPA Energy (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Cachelot Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Fortune Wheels Investment Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Carrigon Management Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Project Management (BVI) Company Limited (Intermediate
Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Tileman Power Systems (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Guangxi Energy (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
CEPA Slipform Power Systems (BVI) Limited (Intermediate Subsidiary)
(100% - Consolidated Electric Power Asia Limited)
Southern Electric International - Netherlands, BV (Intermediate
Subsidiary) (100% - Southern Energy International, Inc.)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Electric International Finance, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
Southern Energy Europe, Inc. (Intermediate Subsidiary)
(100% Southern Energy International, Inc.)
Southern Energy UK Generation Limited (Intermediate
Subsidiary) (100% - Southern Energy Europe, Inc.)
Southern Energy Development - Europe Limited (Intermediate
Subsidiary) (100% - Southern Energy Europe, Inc.)
Southern Energy Development Hungaria, L.L.C. (Special Purpose Subsidiary)
(100% - Southern Energy Development - Europe Limited)
The Southern Company - Europe, plc (Intermediate
Subsidiary) (99% - Southern Energy Europe, Inc., 1% -
Southern Energy Inc.)
Southern Energy Netherlands, Ltd. (Intermediate Subsidiary)
(100% - Southern Energy Europe, Inc.)
Southern Energy Europe Investments, Ltd. (Intermediate Subsidiary)
(100% - Southern Energy Europe, Inc.)
Southern Energy Netherlands B.V. (Dutch) (Intermediate Subsidiary)
(50% - Southern Energy Netherlands, Ltd.; 50% Southern Energy Europe
Investments, Ltd.)
Southern Energy - Europe B.V. (Dutch) (Special Purpose Subsidiary)
(100% - Southern Energy Netherlands B.V.)
Southern Electric International - Europe, Inc. (Intermediate Subsidiary)
(100% - Southern Energy Europe, Inc.)
SWEB Holdings UK (Intermediate Subsidiary)
(49% - Southern Electric International - Europe, Inc.; 51% - Domestic Corporation)
SWEB Holdings Limited (Intermediate Subsidiary)
(100% - SWEB Holdings UK)
Southern Investment UK plc (Intermediate Subsidiary)
(100% - SWEB Holdings Limited)
South Western Electricity plc
(FUCO) (NOTE 1)
(100% - Southern Investment UK plc)
SWEB Investments Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
South Western Helicopters Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
AZTEC Insurance Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy Europe, Inc. - CONTINUED
Southern Electric International - Europe, Inc. - CONTINUED
SWEB Holdings Limited - CONTINUED
Southern Investment UK plc - CONTINUED
South Western Electricity plc - CONTINUED
SWEB Insurance Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Investments 1996 Limited
(FUCO Subsidiary) (100% -
South Western Electricity plc)
Croeso Systems Development Limited (FUCO Subsidiary)
(50% - SWEB Investments 1996 Limited)
Midlands Enterprise Fund (FUCO Subsidiary)
(26.80% - SWEB Investments 1996 Limited)
SWEB Property Investments Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Property Developments Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
Temple Back Developments Limited (FUCO Subsidiary)
(49.0% - SWEB Property Developments Limited)
Weston-Super-Mare Developments Limited (FUCO Subsidiary)
(100.0% - Temple Back Developments Limited)
South Western Power Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
South Western Power Investments Limited (FUCO Subsidiary)
(100% - South Western Power Limited)
Teeside Power Limited (FUCO Subsidiary)
(7.7% - South Western Power Investments
Limited)
Wind Electric Limited (FUCO Subsidiary)
(11.7% - South Western Power Investments
Limited)
WindResources Limited (FUCO Subsidiary)
(45% - South Western Power Investments
Limited)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy, Europe, Inc. - CONTINUED
Southern Electric International - Europe, Inc. - CONTINUED
SWEB Holdings Limited - CONTINUED
Southern Investment UK plc - CONTINUED
South Western Electricity plc - CONTINUED
South Western Power Limited -
CONTINUED South Western
Power Investments
Limited - CONT.
Wind Resources Limited - CONTINUED
Carland Cross Limited (FUCO Subsidiary)
(100% - Wind Resources Limited)
Coal Clough Limited (FUCO Subsidiary)
(100% - Wind Resources Limited)
Winterton Power Limited (FUCO Subsidiary)
(25% - South Western Power Investments Limited)
Green Electron Limited (FUCO Subsidiary)
(90% - South Western Power Limited; 10% Foreign
Corporation)
SWEB Data Collection Services Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
Concorde House Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
Electricity Association EA Technology Limited (FUCO Subsidiary)
(7.7% - South Western Electricity plc)
Non-Fossil Purchasing Agency Limited (FUCO Subsidiary)
(8.3% - South Western Electricity plc)
ElectraLink Limited (FUCO Subsidiary)
(6.19% - South Western Electricity plc)
South Western Energy Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
South Western Natural Gas Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Finance Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Gas Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
REC Collect Limited (FUCO Subsidiary)
(25% - South Western Electricity plc)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy, Europe, Inc. - CONTINUED
Southern Electric International - Europe, Inc. - CONTINUED
SWEB Holdings Limited - CONTINUED
Southern Investment UK plc - CONTINUED
South Western Electricity plc - CONTINUED
South Western Electricity Share Scheme Trustees Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
Electricity Pensions Trustee Limited (FUCO Subsidiary)
(Limited by Guarantee - South Western Electricity plc)
St. Clements Services Limited (FUCO Subsidiary)
(9.1% - South Western Electricity plc)
Electricity Pension Limited (FUCO Subsidiary)
(5% - South Western Electricity plc)
ESN Holdings Limited (FUCO Subsidiary)
(4.5% - South Western Electricity plc)
Electricity Association Limited (FUCO Subsidiary)
(5.9% - South Western Electricity plc)
Northmere Limited (FUCO Subsidiary)
(Limited by Guarantee - South Western Electricity plc)
South West Enterprise Limited (FUCO Subsidiary)
(Limited by Guarantee - South Western Electricity plc)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy Europe, Inc. - CONTINUED
Southern Electric International - Europe, Inc. - CONTINUED
SWEB Holdings Limited - CONTINUED
Southern Investment UK plc - CONTINUED
South Western Electricity plc - CONTINUED
SWEB Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Retail Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Natural Gas Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Pension Trustee Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SWEB Telecom Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
UK Data Collection Service Limited (FUCO Subsidiary)
(8.33% - South Western Electricity plc)
Western Natural Gas Limited (FUCO Subsidiary)
(100% - South Western Electricity plc)
SEI Brazil Holdings, Inc. (Intermediate Subsidiary)
(100 % - Southern Energy International, Inc.)
SEI South America, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
Southern Energy Caribe, Ltd. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
Southern Energy - Newco2, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
SEI Chile, SA (Intermediate Subsidiary)
(99.99% - Southern Energy - Newco2, Inc., .001% - Southern
Energy Inc.)
Energia del Pacifico Limitada (Intermediate
Subsidiary) (99.9% - SEI Chile, SA, .1% - Southern
Energy International, Inc.)
Gasoducto Nor Andino Argentina, S.A. (Intermediate Subsidiary)
(33.33% - Energia del Limitada,; 66.67% - Tractebel)
Gasoducto Nor Andino S.A. (Intermediate Subsidiary)
(33.33% - Energia del Limitada; 66.67% - Tractebel)
Empressa Electrica del Norte Grande, SA (FUCO)
(82.34034% - SEI Chile, SA; 8.81% - Foreign Government; 8.850% - Natural Persons)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
Southern Energy - Newco2, Inc. - CONTINUED
SEI Chile, SA - CONTINUED
Empressa Electrica del Norte Grande, SA - CONTINUED
Sitranor S.A. (Intermediate Subsidiary)
(60% - Empressa Electrica del Norte Grande, SA; 20% - CODELCO; 20% ELECTROANDINA)
Southern Electric Bahamas Holdings, Limited (Intermediate
Subsidiary) (100% - Southern Energy - Newco2, Inc.)
Southern Electric Bahamas, Ltd (Intermediate Subsidiary)
(100% - Southern Electric Bahamas Holdings, Limited)
ICD Utilities Limited (Intermediate Subsidiary)
(25% - Southern Electric Bahamas, Ltd; 75% - Foreign Company)
Freeport Power Company Limited (FUCO)
(50% - Southern Electric Bahamas, Ltd; 50% - ICDU Utilities Limited)
SEI Beteilligungs, GmbH (Intermediate Subsidiary) (100% -
Southern Energy - Newco2, Inc.)
P.T. Tarahan Power Company (Special Purpose Subsidiary)
(55% - SEI Beteilligungs, GmbH; 2.5% - Domestic Corporation;
42.5% - Foreign Company)
Cayman Energy Traders (Intermediate Subsidiary)
(27.59% - Southern Energy International, Inc.; 72.41% - Domestic Corporation)
Southern Electric do Brasil Participacoes, Limitada (Intermediate Subsidiary)
(90.6% - Cayman Energy Traders; 9.4% - Foreign Pension Fund)
Companhia Energetica de Minas Gerais (CEMIG) (FUCO)
(33% - Southern Electric do Brasil Participacoes, Limitada; 51% - Foreign
Government; 16% - General Public)
Southern Energy E Associados Particpacoes, S.A. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
SEI Germany - BEWAG, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
SEI Worldwide Holdings, Inc. (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
SEI Worldwide Holdings (Germany) GmbH (Intermediate
Subsidiary) (50% - SEI Germany - BEWAG, Inc.; 50% - SEI
Worldwide Holdings, Inc.)
Southern Energy Holding Beteiligungsgesellschaft GmbH (Intermediate Subsidiary)
(100% - SEI Worldwide Holdings (Germany) GmbH)
Southern Energy Development-Europa GmbH (Special Purpose Subsidiary)
(100% - SEI Worldwide Holdings (Germany) GmbH)
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy International, Inc. - CONTINUED
SEI Worldwide Holdings, Inc. - CONTINUED
SEI Worldwide Holdings (Germany) GmbH - CONTINUED
Southern Energy Holding Beteiligungsgesellschaft GmbH - CONTINUED
BEWAG ( FUCO)
(26% - Southern Energy Holding Beteiligungsgesellschaft GmbH,
74% Other Foreign Persons )
SEI y Asociados de Argentina, S.A. (Intermediate
Subsidiary) (45.79% - SEI Worldwide Holdings GmbH;
7.14%- Asociados de Electricidad, S.A.; 40.52% -
Holdings: 5.55% - Foreign Corporation; 1% -
Domestic Company)
Hidroelectrica Alicura, S.A. (FUCO)
(59% - SEI y Asociados de Argentina, S.A.; 41% - Foreign Government)
Southern Electric International Trinidad, Inc. (EWG)
(100% - Southern Energy International, Inc.)
The Power Generation Company of Trinidad & Tobago Limited (EWG)
(39% - Southern Electric International Trinidad, Inc.; 51% - Foreign Government;
10% - Domestic Corporation)
SE China Investments (Intermediate Subsidiary)
(100% - Southern Energy International, Inc.)
Southern Energy Mauritius Limited (Intermediate Subsidiary)
(100% SE China Investments)
SEMAR Limited (Intermediate Subsidiary)
(100% SE China Investments)
Southern Energy Newco Limited (Intermediate Subsidiary)
(100% SE China Investments)
Southern Energy Finance Company, Inc. (Intermediate Subsidiary)
(100% Holdings)
EPZ Lease, Inc. (Intermediate Subsidiary)
(100% Southern Energy Finance Company, Inc.)
EPZ Lease, LLC (Intermediate Subsidiary)
(99% EPZ Lease, Inc.; 1% Southern Energy Finance Company, Inc.)
EPZ Lease Holding A, LLC (Intermediate Subsidiary)
(99% EPZ Lease, LLC; 1% EPZ Lease, Inc.)
EPZ Lease Trust A (FUCO)
(100% - EPZ Lease Holding A, LLC {Beneficial Interest})
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy Finance Company, Inc - CONTINUED
EPZ Lease, Inc. - CONTINUED
EPZ Lease, LLC - CONTINUED
EPZ Lease Holding B, LLC (Intermediate Subsidiary)
(99% EPZ Lease, LLC; 1% EPZ Lease, Inc.)
EPZ Lease Trust B (FUCO)
(100% - EPZ Lease Holding B, LLC {Beneficial Interest})
EPZ Lease Holding C, LLC (Intermediate Subsidiary)
(99% EPZ Lease, LLC; 1% EPZ Lease, Inc.)
EPZ Lease Trust C (FUCO)
(100% - EPZ Lease Holding C, LLC {Beneficial Interest})
Southern Energy Clairton, Inc. (Intermediate Subsidiary)
(100% - Southern Energy Finance Company, Inc.)
Southern Energy Clairton, L.L.C. (Intermediate Subsidiary)
(85% - Southern Energy Clairton, Inc.; 15% Southern Energy Clairton2, Inc.)
Clairton 1314 B Partnership, L.P. (Rule 58 Energy-Related Company)
(27% - Southern Energy Clairton, L.L.C.; 73% - Domestic Corporations)
Southern Energy Clairton2, Inc.(Intermediate Subsidiary) (100% -
Southern Energy Finance Company, Inc.)
Southern Energy Carbontronics, Inc. (Intermediate Subsidiary)
(100% - Southern Energy Finance Company, Inc.)
Southern Energy Carbontronics, L.L.C. (Intermediate Subsidiary)
(99% - Southern Energy Carbontronics,Inc.; 1% - Southern Energy Finance Company)
Carbontronics Synfuels Investors, L.P. (Rule 58 Energy-Related Company)
(24.75% - Southern Energy Clairton, L.L.C.; 75.25% - Domestic Corporations)
Dutch Gas Lease, Inc. (Intermediate Subsidiary)
(100% Southern Energy Finance Company, Inc.)
Dutch Gas Lease, L.L.C. (Intermediate Subsidiary)
(99% Dutch Gas Lease, Inc.; 1% Southern Energy Finance Company, Inc.)
Dutch Gas Lease Holding A, L.L.C. (Intermediate Subsidiary)
(99% Dutch Gas Lease, L.L.C.; 1% Dutch Gas Lease, Inc.)
Dutch Gas Lease Trust A (FUCO)
(100% - Dutch Gas Lease Holding A, L.L.C. {Beneficial Interest})
<PAGE>
EXHIBIT H - ORGANIZATION CHART - SOUTHERN ENERGY UMBRELLA COMPANIES
Holdings - CONTINUED
Southern Energy Finance Company, Inc - CONTINUED
Dutch Gas Lease, Inc. - CONTINUED
Dutch Gas Lease, L.L.C. - CONTINUED
Dutch Gas Lease Holding B, L.L.C. (Intermediate Subsidiary)
(99% - Dutch Gas Lease, L.L.C; 1% - Dutch Gas Lease, Inc.)
Dutch Gas Lease Trust B (FUCO)
(100% - Dutch Gas Lease Holding B, L.L.C {Beneficial Interest})
Dutch Gas Lease Holding C, L.L.C. (Intermediate Subsidiary)
(99% - Dutch Gas Lease, L.L.C; 1% - Dutch Gas Lease, Inc.)
Dutch Gas Lease Trust C (FUCO)
(100% - Dutch Gas Lease Holding C, L.L.C. {Beneficial Interest})
Southern Company Capital Funding, Inc. (Intermediate Subsidiary)
(100% - Holdings)
Southern Company Capital Trust I (Intermediate Subsidiary) (100%
- Southern Company Capital Funding, Inc.)
Southern Company Capital Trust II (Intermediate Subsidiary) (100%
- Southern Company Capital Funding, Inc.)
Southern Company Capital Trust III (Intermediate Subsidiary)
(100% - Southern Company Capital Funding, Inc.)
Southern Company Capital Trust IV (Intermediate Subsidiary) (100%
- Southern Company Capital Funding, Inc.)
Mobile Energy Services Holdings, Inc. (Intermediate Subsidiary)
(100% - The Southern Company)
Mobile Energy Services Company, L.L.C. (Public Utility)
(99% - Mobile Energy Services Holdings, Inc.; 1% - Southern Energy Resources, Inc.)
Energia de Neuvo Leon, SA De CV (FUCO)
(33 1/3% - The Southern Company; 33 1/3% Foreign Corporations; 33 1/3% - Foreign
Government)
Footnotes:
NOTE 1 - The organization chart above that includes the subsidiaries of
Consolidated Electric Power Asia Limited and Southwestern Electricity PLC is
updated annually as of December 31.
NOTE 2 - Certain of CEPA's holdings in the Philippines were reorganized through
a series of agreements which were dated and executed on or before December 31,
1997. However, these agreements are awaiting the approval of certain
governmental authorities in the Philippines and are not yet effective.
Southern Energy Resources, Inc.
Southern Energy Inc. 100%(Ownership)(IS)
Inversiones SEI Chile Limitada
SEI Chile, S.A. (99%)Southern Energy, Inc.(1%)(IS)
Electrica SEI Chile Limitada
Sei Chile, SA(97.5%) Southern Energy, Inc. (1%)(IS)
Energia del Pacifico
Edelnor (99%)S.E. Chile(1%)(IS)
Southern electric International, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
Southern Energy, Inc.(ownership) 100% (IS)
HOPEC Engineering Design Limited
Consolidated Construction Resources Limited (100% ownership)
SPS
Five Stars Venture Limited
CEPA Operations(Hong Kong) Limited 16.98%, CEPA Project Mgt & Eng. 15.11%, CEPA
Construction (Hong Kong Limited 67.91%) IS
Hopewell Energy Limited
Consolidated Electric Power Asia Limited(80%), Foreign Company 20% IS
Montana Enterprises Limited
Consolidated Electric Power Asia Limited - ownership 100%(SPS)
Sorensen Enterprises Limited
Consolidated Electric Power Asia Limited - ownership 100%(IS)
Treharn Assets Limited
Consolidated Electric Power Asia Limited - ownership 100%(IS)
CEPA Development (Mauritius) Company Limited(IS)
Shelf Company - ownership not assigned - n/a
CEPA Energy Investment (Mauritius) Limited (IS)
Shelf Company - ownership not assigned - n/a
CEPA Project Holding (Mauritius) Limited (IS)
Shelf Company - ownership not assigned - n/a
China Johnston Southern Limited(IS)
Shelf Company - ownership not assigned - n/a
Consolidated Electric Power Asia(India) Private Limited(IS)
Shelf Company - ownership not assigned - n/a
Consolidated Electric Power Asia Limited (IS)
CEPA - ownership 100%
Consolidated Electric Power Asia (IS)
CEPA - Asia Limited 100%
Johnston Southern Development Company, LLC.
Southern Energy China Limited (95%
Third Party (5%
Southern Energy(Shajiao C) Limited (IS)
CEPA Asia Limited (80%)
Stenus Limited (IS)
CEPA Asia Limited (100%)
Tranquil Star Corporation (IS)
CEPA Asia Limited (100%)
</TABLE>
