-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MzvQvSRzmL2+BwUiiZZBHkBklDz37bpE/iDzpssRx8GvRyprmmGJ31rnN5d7wB9A z9mshpTTi9Bcg8qKPKu72A== 0000899652-99-000069.txt : 19990503 0000899652-99-000069.hdr.sgml : 19990503 ACCESSION NUMBER: 0000899652-99-000069 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 65 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990430 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CINERGY CORP CENTRAL INDEX KEY: 0000899652 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 311385023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U5S SEC ACT: SEC FILE NUMBER: 001-11377 FILM NUMBER: 99607865 BUSINESS ADDRESS: STREET 1: 139 E FOURTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5134219500 MAIL ADDRESS: STREET 1: 139 E FOURTH STREET CITY: CINCINATI STATE: OH ZIP: 45202 U5S 1 1998 CINERGY CORP. FORM U5S SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM U5S ANNUAL REPORT For the Year Ended December 31, 1998 Filed pursuant to the Public Utility Holding Company Act of 1935 by Cinergy Corp. 139 East Fourth Street Cincinnati, Ohio 45202 (Name and address of each registered holding company in the system) TABLE OF CONTENTS Item No. Page 1 System Companies and Investments Therein as of December 31, 1998....3-9 2 Acquisitions or Sales of Utility Assets..............................10 3 Issue, Sale, Pledge, Guarantee, or Assumption of System Securities......................................................11-12 4 Acquisition, Redemption, or Retirement of System Securities.......13-14 5 Investments in Securities of Nonsystem Companies..................15-17 6 Officers and Directors Part I Name, principal business address, and positions held as of December 31, 1998.....................18-44 Part II Financial connections as of December 31, 1998.........45 Part III Compensation and other related information.........46-47 7 Contributions and Public Relations...................................48 8 Service, Sales, and Construction Contracts Part I Intercompany sales and service........................49 Part II Contracts to purchase services or goods between any system company and any affiliate................49 Part III Employment of any person by any system company for the performance on a continuing basis of management services.................................49 9 Wholesale Generators ("EWGs") and Foreign Utility Companies ("FUCOs").......................................................50-57 10 Financial Statements and Exhibits Index to Financial Statements................................58-59 Exhibits.....................................................60-72 Signature............................................................73 2
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 Number of Common % of Issuer's Owner's Shares Voting Book Book Unsecured Name of Company Owned Power Value Value Debt (Indentation indicates subsidiary relationship) (dollars in thousands) Cinergy Corp. ("Cinergy") The Cincinnati Gas & Electric Company ("CG&E") 89,663,086 100 $1,666,443 $1,666,443 - The Union Light, Heat and Power Company ("ULH&P") 585,333 100 128,818 128,818 - Tri-State Improvement Company ("Tri-State") 1,000 100 38,312 946 $37,366 Lawrenceburg Gas Company ("Lawrenceburg") 10,768 100 7,240 7,240 - The West Harrison Gas and Electric Company ("West Harrison") 2,000 100 391 391 - Miami Power Corporation ("Miami") 1,000 100 17 17 - KO Transmission Company ("KO Transmission") 10 100 574 574 - PSI Energy, Inc. ("PSI")(1) 53,913,701 100 975,648 975,648 - South Construction Company, Inc. ("South Construction") 10 100 - - - Cinergy Services, Inc. ("Services") 50 100 738 738 - Cinergy Investments, Inc. ("Investments") 100 100 78,136 78,136 - Cinergy-Cadence, Inc. 100 100 (2,063) (2,063) - Cadence Network LLC ("Cadence") NA 33 654 654 - Cinergy Capital & Trading, Inc. ("Capital & Trading") 100 100 47,740 47,740 - CinCap IV, LLC NA 10 15 15 - CinCap V, LLC*(2) NA 100 - - - CinCap VI, LLC*(3) NA 100 - - - CinCap VII, LLC*(4) NA 100 - - - CinCap VIII, LLC*(5) NA 100 - - - Westwood Operating Company, LLC*(6) NA 100 - - - CinPower I, LLC(7) NA 100 507 507 - Producers Energy Marketing, LLC ("ProEnergy")(8) NA 100 40,970 40,970 - Cinergy Communications, Inc. ("Communications") 100 100 (433) (433) - Cinergy Engineering, Inc. ("Engineering") 100 100 (77) (77) - Cinergy-Centrus, Inc.(9) 100 100 617 617 - Centrus, LLP(10) NA 33 617 617 - Cinergy-Centrus Communications, Inc.(11) 500 100 - - - Cinergy Resources, Inc. 10 100 4,576 4,576 - Cinergy Solutions, Inc. ("Solutions") 100 100 (2,757) (2,757) - Cinergy Business Solutions, Inc.(12) 500 100 - - - Cinergy Customer Care, Inc.*(13) 500 100 - - - Cinergy Solutions of Tuscola, Inc.(14) 100 100 (44) (44) - Energy Equipment Leasing LLC*(15) NA 49 - - - 3 ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) Number of Common % of Issuer's Owner's Shares Voting Book Book Unsecured Name of Company Owned Power Value Value Debt (Indentation indicates subsidiary relationship) (dollars in thousands) Trigen-Cinergy Solutions LLC ("Trigen-Cinergy") NA 50 3,194 3,194 - Trigen-Cinergy Solutions of Baltimore LLC(16) NA 49 - - - Trigen-Cinergy Solutions of Boca Raton, LLC(17) NA 51 2,040 2,040 - Trigen-Cinergy Solutions of Cincinnati LLC ("Trigen-Cinergy Cincinnati") NA 51 306 306 - Trigen-Cinergy Solutions of Illinois L.L.C.* ("Trigen-Cinergy Illinois") NA 49 - - - Trigen-Cinergy Solutions of Orlando LLC(18) NA 51 - - - Trigen-Cinergy Solutions of St. Paul LLC(19) NA 49 - - - Trigen-Cinergy Solutions of Tuscola, LLC(20) NA 49 2,542 2,542 - Cinergy Supply Network, Inc.(21) 500 100 (222) (222) - Reliant Services, LLC(22) NA 50 507 507 - Cinergy Technology, Inc. ("Technology") 100 100 133 133 - Enertech Associates, Inc. ("Enertech") 100 100 (14,686) (14,686) - Cinergy Global Resources, Inc. ("Global Resources")(23) 100 100 508,464 508,464 - Cinergy Global Power, Inc. ("Global Power")(24) 100 100 111,801 111,801 - Cinergy Global Ely, Inc.(25) 500 100 6,504(a) 6,504(a) - EPR Ely Power Limited(26) 214,286 30 21,680(a) 21,680(a) - EPR Ely Limited(27) 1,000,000 100 21,680(a) 21,680(a) - Cinergy Global Power Services Limited 1,001,000 100 - - - Cinergy Global Power Limited*(28) 2 100 - - - Cinergy Global Power (UK) Limited*(29) 2 100 - - - MPI International Limited*(30) 2 100 - - - Cinergy Global San Gorgonio, Inc.(31) 100 100 10,625(a) 10,625(a) - San Gorgonio Westwinds II, LLC(32) NA 50 21,250(a) 21,250(a) - Cinergy Global Holdings, Inc.*(33) 500 100 - - - Cinergy Holdings B.V.(34) 35,000 100 55,632 55,632 - Cinergy Zambia B.V.(35) 35,000 100 5,539 5,539 - Copperbelt Energy Corporation PLC ("Copperbelt") 3,900,000 39 14,203 14,203 - Cinergy Turbines B.V.(36) 2,500 100 2,672 2,672 - EOS PAX I, S.L. ("EOS I")(37) 500 50 1,336 1,336 - EOS PAX IIa, S.L. ("EOS II")(38) 500 50 1,336 1,336 - Cinergy Hydro B.V.(39) 500,000 100 1,709 1,709 - Sociedad Construcciones y Representaciones Industriales S.A. ("Crisa")(40) 85,954 95.5 1,790 1,790 - Vendresse Limited*(41) 1 100 - - - 4 ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) Number of Common % of Issuer's Owner's Shares Voting Book Book Unsecured Name of Company Owned Power Value Value Debt (Indentation indicates subsidiary relationship) (dollars in thousands) Cinergy 1 B.V.(42) 250 100 5,000(a) 5,000(a) - Startekor Investeeringute OU ("Startekor")(43) 67 67 7,425(a) 7,425(a) - Aktsiaselts Narva Elektrivork ("Narva")(44) 281,045 49 15,152(a) 15,152(a) - Cinergy Global Resources 1 B.V.(45) 2,000 100 38,712 38,712 - Moravske Teplarny a.s.(46) 11 100 14,974 14,974 - Plzenska Energetika s.r.o.(47) 489,157,000 100 23,738 23,738 - Cinergy Global Resources a.s.(48) 2 100 - - - Cinergy 2 B.V.(49) 2,500 100 2,000(a) 2,000(a) - Desarrollo Eolico del Ebro, S.A. ("Desebro")(50) 3,608 50 4,000(a) 4,000(a) - Cinergy Global Hydrocarbons Pakistan(51) 100 100 - - - Cinergy MPI II, Inc.* 100 100 - - - Cinergy MPI III, Inc.* 100 100 - - - Cinergy MPI IV, Inc.* 100 100 - - - Cinergy MPI V, Inc.* 100 100 - - - Cinergy MPI VI, Inc.* 100 100 - - - Cinergy MPI VII, Inc.* 100 100 - - - Cinergy MPI VIII, Inc.* 100 100 - - - Cinergy MPI IX, Inc.* 100 100 - - - Cinergy MPI X, Inc.* 100 100 - - - Cinergy MPI XI, Inc.* 100 100 - - - Cinergy MPI XII, Inc.* 100 100 - - - Cinergy MPI XIII, Inc.* 100 100 - - - Cinergy MPI XIV, Inc.* 100 100 - - - Cinergy MPI XV, Inc.* 100 100 - - - Midlands Hydrocarbons (Bangladesh) Limited ("Semutang")(52) 4,535,000 100 7,594 7,594 - Cinergy UK, Inc. ("Cinergy UK") 1,000 100 530,025 530,025 - Avon Energy Partners Holdings ("Avon Energy") 330,000,000 50 1,117,800 1,117,800 - Avon Energy Partners PLC 1,701,513,216 100 2,495,300 2,495,300 - Midlands Electricity plc ("Midlands") 496,655,789 100 2,527,000 2,527,000 - PSI Argentina, Inc. ("Argentina")* 100 100 18,794 18,794 - Costanera Power Corp. ("Costanera")* 100 100 - - - PSI Energy Argentina, Inc.(53) 100 100 25,184 25,184 - * Inactive at December 31, 1998. - - Amounts are less than $1,000. (a) Estimated Notes are on the next page.
5 ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) (1) PSI also has voting cumulative preferred stock outstanding at December 31, 1998, as follows: Class Shares outstanding Vote per share Par value $100 639,748 1 vote Par value $ 25 317,924 1/4 vote (2) CinCap V, LLC, a Delaware limited liability company, was formed in July 1998 to engage in marketing and trading of energy commodities in connection with a pending transaction involving the restructuring of certain wholesale power purchase obligations among non-affiliates. At December 31, 1998, this company was inactive. (3) CinCap VI, LLC, a Delaware limited liability company, was formed in September 1998 to purchase and own the Westwood Generating Facility. At December 31, 1998, this company was inactive. (4) CinCap VII, LLC, a Delaware limited liability company, was formed in December 1998 to be used in future restructuring transactions in the wholesale power markets. At December 31, 1998, this company was inactive. (5) CinCap VIII, LLC, a Delaware limited liability company, was formed in December 1998 to be used in future restructuring transactions in the wholesale power markets. At December 31, 1998, this company was inactive. (6) Westwood Operating Company, LLC, a Delaware limited liability company, was formed in October 1998 as the operating company for the Westwood Generating Facility. At December 31, 1998, this company was inactive. (7) CinPower I, LLC, a Delaware limited liability company, was formed in June 1998 to help optimize the economic benefits in connection with the restructuring of a wholesale power agreement involving non-affiliates. (8) ProEnergy, a Delaware company, was acquired in June 1998. ProEnergy is a gas marketing firm with exclusive marketing rights to North America gas production owned or controlled by Apache Corporation and Oryx Energy Company. (9) Cinergy-Centrus, Inc. (formerly known as Cinergy-Ideon, Inc.), a Delaware corporation, was formed in April 1998 and is an exempt telecommunications company ("ETC"). (10) Centrus, LLP, an Indiana limited liability company, was formed in June 1998 and is an ETC. (11) Cinergy-Centrus Communications, Inc., a Delaware corporation, was formed in July 1998 and is an ETC. (12) Cinergy Business Solutions, Inc., a Delaware corporation, was formed in April 1998 to market energy related asset management services to commercial and industrial customers. (13) Cinergy Customer Care, Inc., a Delaware company, was formed in August 1998 to provide certain utility billing services. At December 31, 1998, this company was inactive. (14) Cinergy Solutions of Tuscola, Inc., a Delaware corporation, was formed in October 1998 to oversee the operations and staffing of a combined heat and power plant in Tuscola, Illinois. Trigen-Cinergy Solutions bought the plant in the third quarter of 1998. ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) (15) Energy Equipment Leasing LLC, a Delaware limited liability company, was formed in November 1998, to lease, sell, or finance energy-related equipment. At December 31, 1998, this company was inactive. (16) Trigen-Cinergy Solutions of Baltimore LLC, a Delaware limited liability company, was formed in November 1998, to develop, construct, operate, and maintain energy facilities to be located in Baltimore, Maryland, and to sell associated electricity and other energy-related products and services. (17) Trigen-Cinergy Solutions of Boca Raton, LLC, a Delaware limited liability company, was formed in September 1998 to develop, construct, operate, and maintain certain thermal energy facilities to be located in Boca Raton, Florida and to sell associated thermal and other energy-related products and services. (18) Trigen-Cinergy Solutions of Orlando LLC, a Delaware limited liability company, was formed in June 1998 to develop, construct, operate, and maintain a district cooling business in the city of Orlando, Florida. (19) Trigen-Cinergy Solutions of St. Paul LLC, a Delaware limited liability company, was formed in August 1998 to develop, construct, finance, own, operate, and maintain certain energy facilities to be located in St. Paul, Minnesota and to sell associated electricity and thermal energy products and services. (20) Trigen-Cinergy Solutions of Tuscola, LLC, a Delaware limited liability company, was formed in August 1998 to develop, construct, operate, and maintain certain energy facilities to be located in Tuscola, Illinois and to sell associated electricity and thermal energy products and services. (21) Cinergy Supply Network, a Delaware corporation, was formed in January 1998 to broker transmission and distribution materials and services and to provide related services to utilities, cooperatives and municipalities and to market locating services for underground utility facilities. (22) Reliant Services, LLC, an Indiana limited liability company, was formed in June 1998, as a joint venture with IGC Energy. Reliant Services, LLC provides underground facilities location and construction to electric, gas, telephone, cable and water companies in Indiana, Ohio, and Kentucky. (23) Global Resources, a Delaware corporation, was formed in May 1998 and holds Cinergy's foreign non-regulated businesses. (24) Global Power (formerly Cinergy Investments MPI, Inc.), a Delaware company, was renamed in 1998. (25) Cinergy Global Ely, Inc., a Delaware corporation, was formed in August 1998 and is dedicated to holding Cinergy's 30% investment in EPR Ely Power Limited. (26) EPR Ely Power Limited, a joint venture formed under the laws of England in May 1998, holds Cinergy's interest in EPR Ely Limited. (27) EPR Ely Limited, a company formed in September 1998 under the laws of Wales and England, is a FUCO. Operations are anticipated to begin in 2000. ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) (28) Cinergy Global Power Limited was formed in February 1998 under the laws of England. This company was created for name preservation purposes only and is an inactive company. (29) Cinergy Global Power (UK) Limited was formed in February 1998 under the laws of England. This company was created for name preservation purposes only and is an inactive company. (30) MPI International Limited was formed in February 1998 under the laws of England. This company was created for name preservation purposes only and is an inactive company. (31) Cinergy Global San Gorgonio, Inc., a Delaware corporation, was formed in October 1998 as a partnership between Cinergy and Seawest Power Systems and holds a 50% interest in San Gorgonio Westwinds II, LLC. (32) San Gorgonio Westwinds II, LLC, a California limited liability company, was formed in October 1998 to hold an interest in a wind farm in California that was under construction at December 31, 1998. (33) Cinergy Global Holdings, Inc., a Delaware corporation, was formed in December 1998 to hold Cinergy's interest in one or more FUCOs. At December 31, 1998, this company was inactive. (34) Cinergy Holdings B.V. (formerly Watercorner Investments B.V.), a Dutch company, was renamed in July 1998. Cinergy Holdings B.V. is an EWG/FUCO project parent company. (35) Cinergy Zambia B.V. (formerly MPII (Zambia) B.V.), a Dutch company, was renamed in 1998. (36) Cinergy Turbines B.V. (formerly Cedarwood B.V.), a Dutch company, was renamed in 1998. (37) EOS I, a Spanish company, was formed in March 1998 and is a FUCO. EOS I owns and operates electric wind generation assets in Spain. (38) EOS II, a Spanish company, was formed in March 1998 and is a FUCO. EOS II owns and operates electric wind generation assets in Spain. (39) Cinergy Hydro B.V. (formerly Midlands Power International B.V.), a Dutch company, was renamed in 1998. (40) Crisa, a Spanish company, was acquired during March 1998 and is a FUCO. Crisa owns and operates hydroelectric generation assets in Spain. (41) Vendresse Limited, a company formed in Isle of Man, is an inactive EWG/FUCO project parent UK company. (42) Cinergy 1 B.V. (formerly Midlands Power 1 B.V.), a Dutch company, was renamed in 1998. Cinergy 1 B.V. is an EWG/FUCO project parent company which acquired a sixty-seven percent (67%) holding in the share capital of Startekor in November 1998. (43) Startekor, an Estonian company, was formed July 6, 1998, and holds a forty-nine percent (49%) interest in Narva. ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1998 (Continued) (44) Narva, an Estonian company incorporated in November 1998, is a FUCO. Narva owns and uses facilities for the distribution and sale at retail of electrical power in northeastern Estonia. (45) Cinergy Global Resources 1 B.V. (formerly Midlands Power Europe B.V.), a Dutch company, was renamed in 1998. (46) Moravske Teplarny a.s., a Czech Republic company, was acquired in July 1998 and is a FUCO. Moravske Teplarny a.s. owns and operates coal-fired electric generation and associated distribution assets and a district heating plant in the Czech Republic. (47) Plzenska Energetika s.r.o., a Czech Republic company, was acquired in September 1998, and is a FUCO. Plzenska Energetika s.r.o. owns and operates three coal-fired electric generators and associated transmission and distribution assets in the City of Plzen, Czech Republic. (48) Cinergy Global Resources a.s., a Dutch company, was formed in September 1998 and is a service company for FUCO projects in the Czech Republic. (49) Cinergy 2 B.V. (formerly Midlands Power Asia B.V.), a Dutch company, was renamed in 1998 and is an EWG/FUCO project parent company. (50) Desebro, a company incorporated in Spain, is a FUCO. Desebro is constructing electric wind generation assets in Spain. Cinergy, through its wholly-owned subsidiaries, acquired a 50% interest in Desebro in December 1998. (51) Cinergy Global Hydrocarbons Pakistan (formerly Cinergy MPI I, Inc.), a Cayman Island corporation, was renamed in 1998. (52) Semutang, formed under the laws of England in 1993, is a foreign EWG. Semutang holds gas field exploration and development rights and is engaged in preliminary power project developmental work in Bangladesh. (53) PSI Energy Argentina, Inc. sold its interest in Edesur S.A. during November 1998 and subsequently revoked its FUCO status. ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS None
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES Name of Principal Amount Company Issuing, or Stated Value Name of Issuer Selling, Pledging, Pledged, and Guaranteeing, or Issued Guaranteed, Date of Commission Title of Issue Assuming Securities and Sold or Assumed Transaction Proceeds Authorization -------------- ------------------- -------------------- ----------- -------- ------------- (in thousands) GLOBAL RESOURCES Debentures 6.20% due November 3, Global $150,000 11/03/98 $145,500 Rule 52 (See certificate 2008 Resources of notification on form U-6B-2 filed on November 17, 1998.) TRIGEN-CINERGY CINCINNATI County of Hamilton, Ohio Local Trigen-Cinergy $8,000 09/28/98 $7,950 Rule 52 (See certificate District Cooling Facilities Revenue Cincinnati of notification on form Bonds, Series 1998 due September U-6B-2 filed on November 15, 2005 17, 1998.) PSI Debentures 6.00% due December 14, PSI $50,000 12/15/98 N/A Rule 52 2016 Unsecured 6.00% Promissory Installment PSI $86,396 10/14/98 N/A Rule 52 Note Promissory note due August 1, 2028 PSI $23,000 08/12/98 $23,000 Rule 52 (See certificate of notification on form U-6B-2 filed on August 18, 1998.) Debentures (specifically, 6.50% PSI $50,000 08/05/98 $49,385 Rule 52 (See certificate Synthetic Putable Yield Securities) of notification on form due August 1, 2026 U-6B-2 filed on August 10, 1998.) ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES (Continued) Name of Principal Amount Company Issuing, or Stated Value Name of Issuer Selling, Pledging, Pledged, and Guaranteeing, or Issued Guaranteed, Date of Commission Title of Issue Assuming Securities and Sold or Assumed Transaction Proceeds Authorization -------------- ------------------- -------------------- ----------- -------- ------------- (in thousands) Junior subordinated debentures PSI $100,000 03/19/98 $98,701 Rule 52 (See certificate (specifically, "7.25% Junior Maturing of notification on form Principal Securities") due March 15, U-6B-2 filed on March 31, 1998.) 2028 CG&E Debentures (specifically, 6.35% RESET CG&E $100,000 06/09/98 $99,225 Rule 52 (See certificate PUT SECURITIES) due June 15, 2038 of notification on form U-6B-2 filed on June 19, 1998.) Debentures 6.40% due April 1, 2008 CG&E $100,000 04/07/98 $98,994 Rule 52 (See certificate of notification on form U-6B-2 filed on April 13, 1998.) ULH&P Debentures 6.11% due December 30, ULH&P $20,000 12/08/98 $19,820 Rule 52 (See certificate 2003 of notification on form U-6B-2 filed on December 16, 1998.) Debentures 6.50% due April 30, 2008 ULH&P $20,000 04/30/98 $19,750 Rule 52 (See certificate of notification on form U-6B-2 filed on May 5, 1998.)
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES Name of Company Principal Extinguished (E) Commission Acquiring, Redeeming, Number of Amount or Held for Authorization Name of Issuer or Retiring Shares Retired Consideration Further or and Title of Issue Securities Redeemed (thousands) (thousands) Disposition (D) Exemption ------------------ ---------- -------- ----------- ----------- --------------- --------- CG&E First Mortgage Bonds 7 3/8% Series Due May 1, 1999 CG&E $ 50,000 $ 50,000 E Rule 42 7 3/8% Series Due November 1, 2001 CG&E 60,000 60,291 E Rule 42 8 1/2% Series Due September 1, 2022 CG&E 100,000 100,000 E Rule 42 Cumulative Preferred Stock Par value $100 per share 4 3/4% Series CG&E 761 76 52 E Rule 42 PSI First Mortgage Bonds Series S, 7.00% Due January 1, 2002 PSI 26,429 26,622 E Rule 42 Series Y, 7 5/8% Due January 1, 2007 PSI 24,140 24,649 E Rule 42 Series QQ, 8 1/4% Due June 15, 2013 (Pollution Control) PSI 23,000 23,460 E Rule 42 Secured Medium-term Notes Series B PSI 35,000 35,000 E Rule 42 Other Long-term Debt 6.25% Note Due December 15, 2005 PSI 50,000 50,000 E Rule 42 6.00% Rural Utilities Service Obligation PSI 775 775 E Rule 42 CFC Obligation 3,605 3,605 E Rule 42 Cumulative Preferred Stock Par value $100 per share 3 1/2% Series PSI 554 55 29 E Rule 42 Par value $25 per share 7.44% Series PSI 3,408,712 85,218 85,218 E Rule 42 ULH&P First Mortgage Bonds 8% Series Due October 1, 2003 ULH&P 10,000 10,118 E Rule 42
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES Aggregate Amount of Investments Number of 1. Name of in Persons (Entities) Operating in Persons Description of Company Retail Service Area of Owner (Entities) Persons (Entities)(1) (in thousands) --------- ----------------------------- --------- ---------------------------------------------------------------- CG&E $ 51 3 Limited partnerships which own, rehabilitate, and maintain apartment for low income housing CG&E 530 2 Limited partnerships which invest in small and minority- or female- owned businesses CG&E 4 2 Community improvement fund CG&E 1,667 1 Limited liability corporation which invests in projects relating to downtown Cincinnati ULH&P 2 2 Economic development corporation PSI 2,828 3 Limited partnerships which make long-term investments in Indiana and other Midwestern businesses PSI 525 1 Limited partnership which invests in start-up companies PSI 4 1 Oil company PSI 5 1 Economic development corporation PS 8 1 Retail department store PSI 38 1 Retail department store PSI 138 1 Manufacturer of construction materials PSI 1 1 Economic development corporation PSI 6 1 Drug store/pharmacy PSI 4 1 Owns and operates hotels PSI 3 1 Economic development corporation PSI 1 1 Economic development corporation PSI 1 6(2) Economic development corporation, country clubs, jeweler, barge company, and bus company Investments 1,667 1 Limited liability corporation which invests in projects relating to downtown Cincinnati Technology 1,667 1 Limited liability corporation which invests in projects relating to downtown Cincinnati Cinergy 1,667 1 Limited liability corporation which invests in projects relating to downtown Cincinnati (1) All of PSI's investments in securities, except for its partnership interests, represent bankruptcy distributions applicable to obligations of customers incurred in the ordinary course of business. (2) Represents small ownership interest in six unrelated companies.
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES (Continued) 2. Securities not included in Item 5, No. 1: Owner's Name of Name of Description Number of % of Nature of Book Value Company Issuer of Security Shares Voting Power Business (in thousands) - ------- ------ ----------- ------ ------------ -------- -------------- Ohio Valley CG&E Electric Corp. Common stock 9,000 9% Public Utility $ 900 Circle PSI Center Mall Limited partnership N/A N/A Shopping Mall in Indianapolis, Indiana 3,015 Refurbishes and EMC Technologies, manufactures large PSI Inc. Preferred stock 3,483 (1) electrical equipment 4 Invests in minority-owned PSI Lynx Capital Corp. Stock 25 (1) businesses 127 Nth Power Technology Invests in energy Cinergy Fund I, L.P. Limited partner N/A N/A technology companies 5,643 (1) Not available
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy Neil A. Armstrong (a) D James K. Baker (c) D Michael G. Browning (d) D Phillip R. Cox (e) D Kenneth M. Duberstein (f) D Cheryl M. Foley (a) D, VP, GC, S John A. Hillenbrand II (g) D George C. Juilfs (h) D Melvin Perelman, Ph.D. (i) D Thomas E. Petry (j) D Mary L. Schapiro (q) D Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,P,CEO John J. Schiff, Jr. (k) D Philip R. Sharp, Ph.D. (l) D Van P. Smith (m) D Dudley S. Taft (n) D Oliver W. Waddell (o) D John Bryant (p) VP Michael J. Cyrus (a) VP Leo P. Denault (a)(1) VP William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP M. Stephen Harkness (b) VP Donald B. Ingle, Jr. (a) VP Jerry W. Liggett (a)(2) VP Madeleine W. Ludlow (a) VP John M. Mutz (b) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Wendy L. Aumiller (a) AT M. Susan Hardwick (a) AC Ronald J. Brothers (b) AS John E. Polley (a) AS Jerome A. Vennemann (a) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* CG&E Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO E. Renae Conley (a)(3) D,P Cheryl M. Foley (a) VP,GC William J. Grealis (a) VP J. Joseph Hale, Jr.(a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC ULH&P Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO E. Renae Conley (a)(3) D,P Cheryl M. Foley (a) D,VP,GC Madeleine W. Ludlow (a) D,VP Larry E. Thomas (a) D,VP Charles J. Winger (a) D,VP,CFO William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Tri-State Jackson H. Randolph (a) D James E. Rogers (a) D E. Renae Conley (a)(3) D,P Larry E. Thomas (a) D Charles J. Winger (a) D,VP J. Joseph Hale, Jr. (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Lawrenceburg Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO Vincent E. Andres (a) D Bernard L. Huff (a) D John M. Mutz (b) D E. Renae Conley (a)(3) P Cheryl M. Foley (a) VP,GC William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP Larry E. Thomas (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Charles J. Winger(a) VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Ronald J. Brothers (b) AS M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* West Harrison Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO Vincent E. Andres (a) D Bernard L. Huff (a) D John M. Mutz (b) D E. Renae Conley (a)(3) P Cheryl M. Foley (a) VP,GC William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Ronald J. Brothers (b) AS M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC Miami Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO Vincent E. Andres (a) D Bernard L. Huff (a) D John M. Mutz (b) D E. Renae Conley (a)(3) P Cheryl M. Foley (a) VP,GC William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Ronald J. Brothers (b) AS M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* KO Transmission Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO E. Renae Conley (a)(3) D,P Cheryl M. Foley (a) D,VP,GC William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT M. Susan Hardwick (a) AC John E. Polley (a) AS David L. Wozny (a) AC PSI James K. Baker (c) D Michael G. Browning (d) D John A. Hillenbrand II (g) D John M. Mutz (b) D,P Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO Cheryl M. Foley (a) VP,GC,S William J. Grealis (a) VP J. Joseph Hale, Jr. (a) VP Donald B. Ingle, Jr. (a) VP Madeleine W. Ludlow (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Larry E. Thomas (a) VP Charles J. Winger (a) VP,CFO Wendy L. Aumiller (a) AT Ronald J. Brothers (b) AS M. Susan Hardwick (a) AC John E. Polley (a) AS John B. Scheidler (b) AS Jerome A. Vennemann (a) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* South Construction Jackson H. Randolph (a) D James E. Rogers (a) D John M. Mutz (b) D,P Cheryl M. Foley (a) D J. Joseph Hale, Jr. (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS John B. Scheidler (b) AS Services Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,P,CEO Todd W. Arnold (a) VP E. Renae Conley (a)(3) VP Michael J. Cyrus (a) VP Leo P. Denault (a)(1) VP Gregory C. Ficke (a) VP Cheryl M. Foley (a) D,VP William J. Grealis (a) D,VP J. Joseph Hale, Jr. (a) VP M. Stephen Harkness (b) VP Donald B. Ingle, Jr. (a) D,VP F. Dale Justis (b) VP Albert Keys (a) VP Paul E. King (a) VP Jerry W. Liggett (a)(2) VP Madeleine W. Ludlow (a) D,VP John M. Mutz (b) VP Leigh J. Pefley (a) VP John C. Procario (a) VP Leonard C. Randolph (a) VP Bernard F. Roberts (a) VP William L. Sheafer (a) VP,T Riaz Q. Siddiqi (a) VP Richard J. Smith (a) VP John P. Steffen (a) VP,C Larry E. Thomas (a) D,VP James L. Turner (a) VP William F. Tyndall (a) VP * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Services (Continued) Patricia K. Walker (a) VP P. Craig Weida (a) VP James H. Willis (b) VP Charles J. Winger (a) D,VP,CFO Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Ronald J. Brothers (b) AS John E. Polley (a) AS M. Susan Hardwick (a) AC David L. Wozny (a) AC Investments Jackson H. Randolph (a) D,CM James E. Rogers (a) D,VCM,CEO William J. Grealis (a) D,P Cheryl M. Foley (a) D,VP,GC Donald B. Ingle, Jr. (a) D Madeleine W. Ludlow (a) D John M. Mutz (b) D Larry E. Thomas (a) D Charles J. Winger (a) D,VP,CFO William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Jerome A. Vennemann (a) S John E. Polley (a) AS Cinergy-Cadence, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Donald B. Ingle, Jr. (a) D,P Cheryl M. Foley (a) D Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cadence (4) Donald B. Ingle, Jr. (a) BM Madeleine W. Ludlow (a) BM Douglas C. Taylor (a) S William L. Sheafer (a) T Capital & Trading (4) Jackson H. Randolph (a) D James E. Rogers (a) D Madeleine W. Ludlow (a) D,P Cheryl M. Foley (a) D Lance Bakrow (a) VP Charles J. Winger (a) VP Bernard F. Roberts (a) VP Riaz Q. Siddiqi (a) VP Arturo Vivar (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS CinCap IV, LLC (4) Madeleine W. Ludlow (a) BM,P Riaz Q. Siddiqi (a) VP Arturo Vivar (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS CinCap V, LLC Cheryl M. Foley (a) BM Madeleine W. Ludlow (a) BM,P James E. Rogers (a) BM Charles J. Winger (a) BM,VP William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Arturo Vivar (a) VP John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* CinCap VI, LLC Madeleine W. Ludlow (a) BM,P William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Arturo Vivar (a) VP Charles J. Winger (a) VP John E. Polley (a) AS CinCap VII, LLC Madeleine W. Ludlow (a) BM,P William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Arturo Vivar (a) VP Charles J. Winger (a) VP John E. Polley (a) AS CinCap VIII, LLC Madeleine W. Ludlow (a) BM,P William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Arturo Vivar (a) VP Charles J. Winger (a) VP John E. Polley (a) AS Westwood Operating Company, LLC Madeleine W. Ludlow (a) BM,P Paul E. King (a) VP William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Charles J. Winger (a) VP John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* CinPower I, LLC James E. Rogers (a) BM Cheryl M. Foley (a) BM Madeleine W. Ludlow (a) BM,P William L. Sheafer (a) T Riaz Q. Siddiqi (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S Arturo Vivar (a) VP Charles J. Winger (a) BM,VP John E. Polley (a) AS ProEnergy Madeleine W. Ludlow (a) BM,P Thomas J. Mulkey (r) COO Kent Samuel (r) VP,CFO Robert Adrian (r) VP Randall F. Bevis (r) VP,GC,AS Donald Maudlin (r) VP Cynthia Shelton (r) VP M. Brad Strong (r) VP Donald Dumire (r) C Paul L. Ezell (r) T Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Communications Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D William J. Grealis (a) D Larry E. Thomas (a) D,P F. Dale Justis (b) VP Leigh J. Pefley (a) VP John C. Procario (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Engineering Jackson H. Randolph (a) D James E. Rogers (a) D Scott A. Haag (a) D Barry E. Pulskamp (a) D John J. Roebel (a) D Larry E. Thomas (a) P William J. Grealis (a) VP F. Dale Justis (b) VP Charles J. Winger (a) VP John C. Procario (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Cinergy-Centrus, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Centrus, LLP (4) Donald B. Ingle, Jr. (a) BR Albert Keys (a) BR * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy-Centrus Communications, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Albert Keys (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Charles J. Winger (a) VP John E. Polley (a) AS Cinergy Resources, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Solutions Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Todd W. Arnold (a) VP Stephen P. Biggerstaff (b) VP M. Stephen Harkness (b) VP Albert Keys (a) VP Patricia K. Walker (a) VP Richard J. Smith (a) VP James H. Willis (b) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Ronald J. Brothers (b) AS F. Dale Justis (b) VP John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy Business Solutions, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,CEO Charles J. Winger (a) D,VP Leland D. Smith (a) P,COO William L. Sheafer (a) T Richard J. Smith (a) VP John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Cinergy Customer Care, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Charles J. Winger (a) D,VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Cinergy Solutions of Tuscola, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Donald B. Ingle, Jr. (a) D,P Charles J. Winger (a) D,VP M. Stephen Harkness (b) VP Paul E. King (a) VP Jerry W. Liggett (a) (2) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Energy Equipment Leasing LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Douglas C. Taylor (a) AS Jerome A. Vennemann (a) S Trigen-Cinergy (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Trigen-Cinergy Solutions of Baltimore LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Trigen-Cinergy Solutions of Boca Raton LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Trigen-Cinergy Cincinnati (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Trigen-Cinergy Illinois (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO Jerome A. Vennemann (a) S William L. Sheafer (a) AT Douglas C. Taylor (a) AS Trigen-Cinergy Solutions of Orlando LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Trigen-Cinergy Solutions of St. Paul LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Trigen-Cinergy Solutions of Tuscola LLC (4) James E. Rogers (a) BM,CM Donald B. Ingle, Jr. (a) BM Charles J. Winger (a) BM M. Stephen Harkness (b) EVP,COO William L. Sheafer (a) AT Jerome A. Vennemann (a) S Douglas C. Taylor (a) AS Cinergy Supply Network, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D William J. Grealis (a) D Larry E. Thomas (a) D,P William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Charles J. Winger (a) VP John E. Polley (a) AS Reliant Services, LLC (4) Leigh J. Pefley (a) BR,CM Stephen P. Biggerstaff (b) BR F. Dale Justis (b) BR Technology Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D William J. Grealis (a) D,P Charles J. Winger (a) VP John M. Mutz (b) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Enertech Jackson H. Randolph (a) D James E. Rogers (a) D Scott A. Haag (a) D Barry E. Pulskamp (a) D John J. Roebel (a) D William J. Grealis (a) P Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Global Resources James E. Rogers (a) D,CEO Cheryl M. Foley (a) D,P Charles J. Winger (a) D,VP,CFO Lisa D. Gamblin (a) VP Vladimir Prerad (a) VP William L. Sheafer (a) VP,T John P. Steffen (a) VP,C Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT David L. Wozny (a) AC Global Power James E. Rogers (a) D,CEO Cheryl M. Foley (a) D Charles J. Winger (a) D,VP John Bryant (p) P Lisa D. Gamblin (a) VP William J. Grealis (a) VP Vladimir Prerad (a) VP William L. Sheafer (a) T Stephen Staley (p) VP John P. Steffen (a) C Philip J. Taylor (p) VP Andrew M. Turk (p) VP Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Hugh C. Hamilton (p) AS David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy Global Ely, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Madeleine W. Ludlow (a) D John Bryant (p) P Lisa D. Gamblin (a) VP Stephen Staley (p) VP Philip J. Taylor (p) VP Andrew M. Turk (p) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Hugh C. Hamilton (p) AS David L. Wozny (a) AC EPR Ely Power Limited (4) John Bryant (p) D Albert Malcolm Harrison (p) D EPR Ely Limited (4) John Bryant (p) D Albert Malcolm Harrison (p) D Cinergy Global Power Services Limited John Bryant (p) D Cheryl M. Foley (a) D Hugh C. Hamilton (p) D,S Philip J. Taylor (p) D Andrew M. Turk (p) D Cinergy Global Power Limited Hugh C. Hamilton (p) D,S Andrew M. Turk (p) D * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy Global Power (UK) Limited Hugh C. Hamilton (p) D,S Andrew M. Turk (p) D MPI International Limited Hugh C.Hamilton (p) D,S Michelle L. Douthwaite (p) D Cinergy Global San Gorgonio, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Charles J. Winger (a) D,VP John Bryant (p) P Wendy L. Aumiller (a) AT Lisa D. Gamblin (a) VP Hugh C. Hamilton (p) AS William L. Sheafer (a) T Stephen Staley (p) VP John P. Steffen (a) C Philip J. Taylor (p) VP Andrew M. Turk (p) VP Jerome A. Vennemann (a) S David L. Wozny (a) AC San Gorgonio Westwinds II, LLC Philip J. Taylor (p) BM Gill Howard (p) BM * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy Global Holdings, Inc. James E. Rogers (a) D Cheryl M. Foley (a) D Charles J. Winger (a) D,VP John Bryant (p) P Lisa D. Gamblin (a) VP William L. Sheafer (a) T Stephen Staley (p) VP John P. Steffen (a) C Philip J. Taylor (p) VP Andrew M. Turk (p) VP Jerome A. Vennemann (a) S Wendy L. Aumiller (a) AT Hugh C. Hamilton (p) AS David L. Wozny (a) AC Cinergy Holdings B.V. John Bryant (p) D Andrew M. Turk (p) D Cinergy Zambia B.V. John Bryant (p) D Andrew M. Turk (p) D Copperbelt (4) John Bryant (p) D Vladimir Prerad (a) D Cinergy Turbines B.V. John Bryant (p) D Andrew M. Turk (p) D EOS I (4) Francisco Rausell Solari (p) D Derek John Spencer (p) D Albert Malcolm Harrison (p) D * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* EOS II (4) Francisco Rausell Solari (p) D Derek John Spencer (p) D Albert Malcolm Harrison (p) D Cinergy Hydro B.V. John Bryant (p) D Andrew M. Turk (p) D Crisa (4) Derek John Spencer (p) MD,D John Bryant (p) D Andrew M. Turk (p) D Vendresse Limited R.R. Jones (p) D,S P.R. Kelly (p) D A.V. Jones (p) D Cinergy 1 B.V. John Bryant (p) D Andrew M. Turk (p) D Startekor (4) William Andrew John Poulton (p) D Narva (4) Rein Annik (u) D Cinergy Global Resources 1 B.V. John Bryant (p) D Vladimir Prerad (a) D Andrew M. Turk (p) D * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Moravske Teplarny a.s. (4) Vladimir Prerad (a) CM Ing. Josef Gaba (p) VCM Cheryl M. Foley (a) D Plzenska Energetika s.r.o. (4) Ing. Bohuslav Michalek (p) RA Vladimir Prerad (a) RA Ing. Miroslav Lucak (t) RA Cinergy Global Resources a.s. Vladimir Prerad (a) CM Jana Klickova (s) D Jiri Radoch (s) D Cinergy 2 B.V. John Bryant (p) D Vladimir Prerad (a) D Andrew M. Turk (p) D Desebro (4) Derek John Spencer (p) D Francisco Rausell Solari (p) D Cinergy Global Hydrocarbons Pakistan John Bryant (p) D,MD Cheryl M. Foley (a) D Lisa D. Gamblin (a) D Madeleine W. Ludlow (a) D Vladimir Prerad (a) D James E. Rogers (a) D,CM Philip J. Taylor (p) D Andrew M. Turk (p) D,T,C Jerome A. Vennemann (a) D,AS Hugh C. Hamilton (p) S Wendy L. Aumiller (a) AT David L. Wozny (a) AC * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Cinergy MPI II, Inc. - Cinergy MPI XV, Inc. James E. Rogers (a) D,CM Cheryl M. Foley (a) D Madeleine W. Ludlow (a) D John Bryant (p) MD,D Philip J. Taylor (p) D Andrew M. Turk (p) D,T,C Lisa D. Gamblin (a) D Vladimir Prerad (a) D Jerome A. Vennemann (a) D,AS Hugh C. Hamilton (p) S Wendy L. Aumiller (a) AT David L. Wozny (a) AC Semutang John Bryant (p) D Hugh Hamilton (p) S Philip J. Taylor (p) D Andrew M. Turk (p) D Cinergy UK James E. Rogers (a) D,CEO Cheryl M. Foley (a) D,P Charles J. Winger (a) D,VP William J. Grealis (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S Lisa D. Gamblin (a) VP Wendy L. Aumiller (a) AT Hugh C. Hamilton (p) AS David L. Wozny (a) AC Avon Energy (4) James E. Rogers (a) D,VCM Cheryl M. Foley (a) D Madeleine W. Ludlow (a) D * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* Avon Energy Partners PLC (4) James E. Rogers (a) D,VCM Cheryl M. Foley (a) D Madeleine W. Ludlow (a) D Midlands (4) James E. Rogers (a) D,VCM Cheryl M. Foley (a) D Madeleine W. Ludlow (a) D John Bryant (p) D Argentina Jackson H. Randolph (a) D James E. Rogers (a) D William J. Grealis (a) D Cheryl M. Foley (a) D,P Lisa D. Gamblin (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS Costanera Jackson H. Randolph (a) D James E. Rogers (a) D William J. Grealis (a) D Cheryl M. Foley (a) D,P Lisa D. Gamblin (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44. ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I POSITION HELD AT NAME (ADDRESS)* DECEMBER 31, 1998* PSI Energy Argentina, Inc. Jackson H. Randolph (a) D James E. Rogers (a) D Cheryl M. Foley (a) D,P Lisa D. Gamblin (a) VP Charles J. Winger (a) VP William L. Sheafer (a) T John P. Steffen (a) C Jerome A. Vennemann (a) S John E. Polley (a) AS * Address codes, position descriptions, and notes are listed on pages 43-44.
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I Address codes: (a) 139 East Fourth Street, Cincinnati, Ohio 45202 (b) 1000 East Main Street, Plainfield, Indiana 46168 (c) 12044 W. State Road 46, Columbus, Indiana 47201 (d) 251 North Illinois, Suite 200, Indianapolis, Indiana 46204 (e) 105 East Fourth Street, Suite 600, Cincinnati, Ohio 45202 (f) 2100 Pennsylvania Avenue, N.W., Suite 500, Washington, D.C. 20037 (g) 324 Mitchell Avenue, Batesville, Indiana 47006 (h) One Riverfront Place, Newport, Kentucky 41071 (i) 8751 Jaffa Court, E. Drive, Apt. 16, Indianapolis, Indiana 46260 (j) 250 East Fifth Street, Suite 500, Cincinnati, Ohio 45201 (k) P.O. Box 145496, Cincinnati, Ohio 45250-5496 (l) 79 JFK Street, Cambridge, Massachusetts 02138 (m) 123 East Adams Street, Muncie, Indiana 47305 (n) 312 Walnut Street, Suite 3550, Cincinnati, Ohio 45202 (o) P.O. Box 1038, 425 Walnut Street, Cincinnati, Ohio 45201-1038 (p) Cinergy House, Ryon Hill Park, Warwick Road, Stratford-upon-Avon, Warwickshire CV37 OUU (q) 1735 K Street, N.W., Washington, D.C. 20006-1500 (r) 616 F.M. 1960 West, Suite 800, Houston, Texas 77090 (s) Karlova 48, 110 00 Praha 1, Czech Republic (t) Plzenska Energetika s.r.o., Tylova 57, 316 00 Plzen, Czech Republic (u) Aktsiaselts Narva Elektrivork of Kerese 11, Narva EE2000, Estonia Positions are indicated by the following symbols: AC Assistant Comptroller AS Assistant Secretary AT Assistant Treasurer BM Board of Managers BR Board of Representatives C Comptroller CEO Chief Executive Officer CFO Chief Financial Officer COO Chief Operating Officer CM Chairman of the Board CS Chief of Staff D Director EVP Executive Vice President GC General Counsel MD Managing Director P President RA Registered Agent S Secretary T Treasurer VCM Vice Chairman VP Vice President 42 ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part I Notes: (1) Effective February 28, 1999, Leo P. Denault resigned from Cinergy and all other Cinergy system companies. (2) Effective March 31, 1999, Jerry W. Liggett retired from Cinergy and all other Cinergy system companies. (3) Effective February 28, 1999, E. Renae Conley resigned from Cinergy and all other Cinergy system companies. (4) For entities which are not wholly owned directly or indirectly by Cinergy or its system entities, disclosure is limited to those officers and/or directors who are directly employed by Cinergy or its system entities.
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part II Name of Officer Name and Location Position Held in Applicable or Director of Financial Institution Financial Institution Exemption Rule Phillip R. Cox Cincinnati office of the Director 70(h) Federal Reserve Bank of Cleveland Cleveland, Ohio PNC Bank, Ohio, N.A. Director 70(a) Cincinnati, Ohio John A. Hillenbrand II National City Bank Director 70(a),(c) Indianapolis, Indiana George C. Juilfs Cincinnati office of the Chairman, Director 70(h) Federal Reserve Bank of Cleveland Cleveland, Ohio John M. Mutz National City Bank Director 70(c),(e),(f) Indianapolis, Indiana Thomas E. Petry Firstar Corporation Director 70(a) Milwaukee, Wisconsin Jackson H. Randolph PNC Bank Corp. Director 70(b),(d), Pittsburgh, Pennsylvania (e),(f) James E. Rogers Fifth Third Bancorp Director 70(a),(c), Cincinnati, Ohio (e),(f) The Fifth Third Bank Director 70(a),(c), Cincinnati, Ohio (e),(f) John J. Schiff, Jr. Fifth Third Bancorp Director 70(a) Cincinnati, Ohio The Fifth Third Bank Director 70(a) Cincinnati, Ohio Dudley S. Taft Fifth Third Bancorp Director 70(a) Cincinnati, Ohio The Fifth Third Bank Director 70(a) Cincinnati, Ohio Oliver W. Waddell Firstar Corporation Director 70(a) Milwaukee, Wisconsin Firstar Bank, N.A. Director 70(a) Milwaukee, Wisconsin
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1998 (Continued) Part III (a) and (e) Directors' and Executive Officers' Compensation and Participation in Bonus and Profit-Sharing Arrangements and Other Benefits For information concerning compensation of directors and executive officers and their participation in bonus and profit-sharing and other benefits, see the disclosures made in the: Cinergy Corp 1999 Proxy Statement and 1998 Financial Report ("Proxy Statement"*), pages 8 through 19 for Cinergy, including Investments, Global Resources, and Services. 1998 Annual Report on Form 10-K ("Form 10-K"), pages 131 through 141, for CG&E and subsidiaries. 1999 PSI Information Statement and Cinergy Corp. 1998 Financial Report ("Information Statement"*), pages 5 through 15 (as supplemented in Exhibit F-16), for PSI and its subsidiary. (b) Directors' and Executive Officers' Interests in Securities of System Companies For information concerning interests in system companies, see the disclosures (as supplemented in Exhibit F-16) made in the: Proxy Statement, page 9, for Cinergy, including Investments, Global Resources, and Services. Form 10-K, page 143 for CG&E and subsidiaries. Information Statement, page 4, for PSI and its subsidiary. (c) Directors' and Executive Officers' Contracts and Transactions with System Companies For information concerning contracts and transactions with system companies, see the disclosures made in the: Proxy Statement, pages 17 through 19, for Cinergy, including Investments, Global Resources, and Services. Form 10-K, pages 139-141, for CG&E and subsidiaries. Information Statement, pages 13 through 15, for PSI and its subsidiary. (d) Indebtedness of Directors or Executive Officers to System Companies None (f) Directors' and Executive Officers' Rights to Indemnity The state laws under which each of Cinergy and its domestic direct and indirect subsidiaries is incorporated provide broadly for indemnification of directors and officers against claims and liabilities against them in their capacities as such. Each of such company's articles of incorporation, charters, by-laws, or regulations identifying these rights to indemnify are incorporated by reference or contained herein as exhibits. * The Proxy Statement and Information Statement are hereby incorporated by reference (see File Nos. 1-11377 and 1-3543, respectively).
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (1) None(1) Cinergy and PSI have established separate segregated funds or political action committees and have incurred certain costs in the administration of these committees in accordance with the provisions of the Federal Election Campaign Act. (2) Name of Company Name of Recipient or Beneficiary Purpose Account Charged* Amount - --------------- -------------------------------- ------- ---------------- ------ CG&E Electric Power Research Institute Dues, support (2) $1,077,332 American Gas Association Dues, support (2) 59,849 Less than $10,000 - 25 beneficiaries Dues, fees, support (1),(2) 56,368 ------------- $1,193,549 ULH&P Electric Power Research Institute Dues (2) $ 205,231 Less than $10,000 - 18 beneficiaries Dues, fees, support (1),(2) 25,657 ------------- $ 230,888 PSI Alliance for Growth and Progress, Inc. Dues (2) $ 10,000 Electric League of Indiana Dues (2) 12,000 Electric Power Research Institute Dues, fees, support (2) 1,315,294 Less than $10,000 - 71 beneficiaries Dues, fees, support (1),(2) 38,680 ------------- $1,375,974 Cinergy Less than $10,000 - 1 beneficiary Support (1) $ 525 -------------- Resources, Inc. $ 525 * Account Charged: (1) Income deduction (2) Operating expense
ITEM 8. SERVICE, SALES, AND CONSTRUCTION CONTRACTS Part I In Effect Dec. 31, Serving Receiving Date of 1998 Transaction Company Company Compensation Contract (Yes or No) (in thousands) Propane plant and underground storage cavern ULH&P CG&E $205 5/23/61 Yes
Serving Receiving Transaction Company Company Compensation (in thousands) Customer relations services(1) CG&E ULH&P $843 Gas and/or electric operations(1) CG&E ULH&P $363 Part II None Part III None (1) Pursuant to Rel. No. 35-26146, dated October 21, 1994. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES Part I (a) Semutang Semutang is an EWG. Cinergy indirectly owns 100% of Semutang, a corporation organized under the laws of England. Semutang holds gas field exploration and development rights and is engaged in preliminary power project development work in Bangladesh. The business address of Semutang is Cinergy House, Ryon Hill Park, Warwick Road, Stratford-upon-Avon, Warwickshire, CV 37 OUU, UK. EPR Ely Limited EPR Ely Limited is a FUCO. Cinergy indirectly owns 30% of EPR Ely Limited, a corporation organized under the laws of England and Wales. EPR Ely Limited owns the Ely Power Station, located in Ely, Cambridgeshire, a renewable energy project under construction in the UK. The facility is a straw burning plant capable of generating electricity while producing little or no waste products. The business address of EPR Ely Limited is 15 The Courtyard, Woodlands Lane, Bradley Stoke, Bristol, BS32 4 NQ, United Kingdom. Copperbelt Copperbelt is also a FUCO. Cinergy indirectly owns 39% of Copperbelt, a corporation organized under the laws of the Republic of Zambia. Copperbelt owns and operates certain electric generation, transmission, and distribution assets formerly held by the Republic of Zambia, through the Power Division of Zambia Consolidated Copper Mines Limited. The assets are located in and around the city of Kitwe in north central Zambia. The business address of Copperbelt is 23rd Avenue, Nkana East, P.O. Box 20819, Kitwe, Zambia. EOS I EOS I is also a FUCO. Cinergy indirectly owns 50% of EOS I, a corporation organized under the laws of Spain. EOS I owns and operates 20.4 MW of electric wind generation assets in and around Santiago de Compostela in La Coruna Province, Spain. These assets supply electricity to Union Fenosa, the regional electric utility. The business address of EOS I is EOS PAX I S.L., c/Galeras, 17 planta 3 degree, Oficina 2-3 15705, Santiago de Compostela, La Coruna, Spain. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) EOS II EOS II is a FUCO. Cinergy indirectly owns 50% of EOS II, a corporation organized under the laws of Spain. EOS II owns and operates 19.2 MW of electric wind generation assets in Spain and is part of the Galicia wind farms. The assets are located in and around Santiago de Compostela in La Coruna Province, Spain, and supply electricity to Union Fenosa (the regional electric utility). The business address of EOS II is EOS PAX IIa, S.L., c/Galeras, 17 planta 3 degree, Oficina 2-3 15705, Santiago de Compostela, La Coruna, Spain. Crisa Crisa is a FUCO. Cinergy indirectly owns 95% of Crisa, a corporation organized under the laws of Spain. Crisa owns and operates 5.721 MW of hydroelectric generation assets located primarily in five sites in Murcia Province, Spain. The assets supply electricity to Iberdrola, the regional electric utility. The business address of Crisa is Construcciones y Representaciones Industriales S.A., Paseo de la Castellana, 23, Escalera 1-1 degree, Madrid 28046, Spain. Narva Narva is a FUCO. Cinergy indirectly owns 33% of Narva, a corporation organized under the laws of Estonia. Narva owns and uses facilities for the distribution and sale at retail of electrical power in northeastern Estonia, including the cities of Narva, Narva-Joesuu, and Sillamae and Vaivara parish. The facilities include approximately 296 substations of different voltage and capacity characteristics, and a distribution network of voltages up to 110kV over an area of approximately 610 square km. The business address of Narva is Aktsiaselts Narva Elektrivork of Kerese 11, Narva EE2000, Estonia. Moravske Teplarny a.s. Moravske Teplarny a.s. is a FUCO. Cinergy indirectly owns 100% of Moravske Teplarny a.s., a company which is organized under the laws of the Czech Republic. Moravske Teplarny a.s. owns and operates 36 MW of coal-fired, electric generation and associated distribution assets and a 410 MW district heating plant in the Czech Republic. The electric assets are located in and around Zlin in the Czech Republic, and supply electricity to the local industry and Jihomoravska energetika, the regional electric distribution entity. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) The business address of Moravske Teplarny a.s. is Teplaran Svit a.s., tr. Bati 1970, 762 02, Zlin, Czech Republic. Plzenska Energetika s.r.o. Plzenska Energetika s.r.o. is also a FUCO. Cinergy indirectly owns 100% of Plzenska Energetika s.r.o., a company which is organized under the laws of the Czech Republic. Plzenska Energetika s.r.o. owns and operates three 28 MW coal-fired electric generators and associated transmission and distribution assets in the City of Plzen, the Czech Republic. The address of Plzenska Energetika s.r.o. is Plzenska Energetika s.r.o., Tylova 57, 316 00, Plzen, Czech Republic. Desebro Desebro is also a FUCO. Cinergy indirectly owns 50% of Desebro, a company incorporated in Spain. Desebro is constructing 15 megawatts of electric wind generation assets in northeast Spain around the City of Zaragoza, in the Province of Aragon, and will supply electricity to Electricas Reunidas de Zaragoza, S.A., a local utility company. The address of Desebro is Avenida Academia Militar 52, 50015 Zaragoza, Spain. Midlands Midlands is also a FUCO. Cinergy indirectly owns 50% of Midlands, a corporation organized under the laws of England. Midlands serves approximately 2.2 million customers in mid-central England. One of twelve regional electric companies in England, Midlands in primarily a distribution company, purchasing most of its electricity requirements from third party generators. The business address of Midlands is Blackpole Road, Worcester, WR4 9TB, UK. (b) Semutang Global Power, a Delaware corporation, has a 100% equity interest in Semutang. Semutang holds a 30% interest in certain gas assets in a gas field in Bangladesh. At December 31, 1998, Cinergy's total aggregate investment in Semutang was $9 million. Cinergy has neither directly nor indirectly guaranteed any securities of Semutang. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Semutang. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) EPR Ely Limited EPR Ely Power Limited, which is 30% owned by Cinergy Global Ely, Inc., holds all of the authorized share capital of EPR Ely Limited. At December 31, 1998, Cinergy's total aggregate investment in EPR Ely Limited was $6.5 million. Cinergy, through Cinergy Global Ely, Inc., has entered into unconditional obligations effective September 9, 1998, under which on or before September 10, 1999, it will subscribe in cash for the following classes of voting securities in EPR Ely Power Limited, namely 214,286 ordinary shares of GB Pounds (1) one each representing 30% of such class. No Cinergy subsidiary company that is not a FUCO has transferred any assets to EPR Ely Limited. Copperbelt Cinergy Zambia B.V. (formerly MPII (Zambia) B.V.), a Dutch company, substantially all of whose equity is held by Cinergy Holdings B.V., holds 3.9 million Ordinary Shares of Copperbelt. At December 31, 1998, Cinergy's aggregate investment in Copperbelt was $31 million. Cinergy has neither directly nor indirectly guaranteed any securities of Copperbelt. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Copperbelt. EOS I Cinergy Turbines B.V. (formerly Cedarwood B.V.), a wholly-owned subsidiary of Cinergy Holdings B.V., holds 500 of the 1,000 issued and outstanding shares (with a par value of 1,000 Pesetas per share) of EOS I. At December 31, 1998, Cinergy's aggregate investment in EOS I was $4 million. Cinergy has neither directly nor indirectly guaranteed any securities of EOS I. No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to EOS I. EOS II Cinergy Turbines B.V. (formerly Cedarwood B.V.), a wholly-owned subsidiary of Cinergy Holdings B.V., holds 500 of the 1,000 issued and outstanding shares (with a par value of 1,000 Pesetas per share) of EOS II. At December 31, 1998, Cinergy's aggregate investment in EOS II was $4 million. Cinergy has neither directly nor indirectly guaranteed any securities of EOS II. No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to EOS II. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) Crisa Cinergy Hydro B.V. (formerly Midlands Power International, B.V.) is the legal and beneficial owner of 85,954 shares, representing approximately ninety-five and one-half percent (95.5%) of the issued share capital of Crisa. At December 31, 1998, Cinergy's aggregate investment in Crisa was $4 million. Cinergy has neither directly nor indirectly guaranteed any securities of Crisa. No Cinergy subsidiary company, that is not a FUCO, has transferred any assets in Crisa. Narva Cinergy 1, B.V., a Dutch company, all of whose equity is held by Cinergy Hydro B.V., holds an indirect thirty-three percent (33%) equity interest in the outstanding shares of Narva. This indirect interest is through Cinergy 1 B.V.'s sixty-seven percent (67%) holding in the share capital of Startekor (the holder of forty-nine percent (49%) of the voting securities of Narva). At December 31, 1998, Cinergy's aggregate investment in Narva was $5 million. Cinergy has neither directly nor indirectly guaranteed any securities of Narva. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Narva. Moravske Teplarny a.s. Cinergy Global Resources 1 B.V. is the legal and beneficial owner of 100% of the issued share capital of Moravske Teplarny a.s. At December 31, 1998, Cinergy's aggregate investment in Moravske Teplarny a.s. was $40 million. Cinergy has neither directly nor indirectly guaranteed any securities of Moravske Teplarny a.s. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Moravske Teplarny a.s. Plzenska Energetika s.r.o Cinergy Global Resources 1 B.V. is the legal and beneficial owner of 100% of the issued share capital of Plzenska Energetika s.r.o. At December 31, 1998, Cinergy's aggregate investment in Plzenska Energetika s.r.o.was $24 million. Cinergy has neither directly nor indirectly guaranteed any securities of Plzenska Energetika s.r.o. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Plzenska Energetika s.r.o. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) Desebro Cinergy 2 B.V. is the legal and beneficial owner of 3,608 shares (50% of the issued share capital of Desebro). At December 31, 1998, Cinergy's aggregate investment is Desebro was $2 million. Cinergy has neither directly nor indirectly guaranteed any securities of Desbro. No Cinergy subsidiary company that is not a FUCO has transferred any assets to Desebro. Midlands Avon Energy Partners PLC holds all of Midlands common stock. At December 31, 1998, Cinergy's aggregate investment in Midlands was $478 million. The total consideration paid by Avon Energy was approximately 1.7 billion pounds sterling ($2.6 billion at then existing currency exchange rates). The funds for the acquisition were obtained from Cinergy's and GPU, Inc.'s investment in Avon Energy of approximately 330 pounds sterling each ($500 million each), with the remainder being obtained by Avon Energy through the issuance of non-recourse debt. Cinergy has used dollar denominated debt to finance its investment in Midlands. At December 31, 1998, Cinergy's outstanding borrowings related to its acquisition of Midlands was $504 million, of which $200 million is classified as long-term debt and $304 million is classified as notes payable and other short-term obligations. Cinergy has neither directly nor indirectly guaranteed any securities of Midlands. No Cinergy subsidiary company, that is not a FUCO, has transferred any assets to Midlands. (c) Semutang Filed pursuant to Rule 104(b). See Exhibit J for the required information. EPR Ely Limited Cinergy has not obtained complete, meaningful financial statements for EPR Ely Limited as of December 31, 1998, and therefore is not in a position to perform the requested calculations as of December 31, 1998. Operations have not yet commenced at EPR Ely Limited and are anticipated to begin in 2000. Copperbelt Filed pursuant to Rule 104(b). See Exhibit J for the required information. ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) EOS I Filed pursuant to Rule 104(b). See Exhibit J for the required information. EOS II Filed pursuant to Rule 104(b). See Exhibit J for the required information. Crisa Filed pursuant to Rule 104(b). See Exhibit J for the required information. Narva Cinergy obtained its ownership interest in Narva in the fourth quarter of 1998. As a result, Cinergy has not obtained complete, meaningful financial statements for Narva as of December 31, 1998, and therefore is not in a position to perform the requested calculations as of December 31, 1998. Moravske Teplarny a.s. Filed pursuant to Rule 104(b). See Exhibit J for the required information. Plzenska Energetika s.r.o. Filed pursuant to Rule 104(b). See Exhibit J for the required information. Desebro Cinergy obtained its ownership interest in Desebro in the fourth quarter of 1998. As a result, Cinergy has not obtained complete, meaningful financial statements for Desebro as of December 31, 1998, and therefore is not in a position to perform the requested calculations as of December 31, 1998. Midlands Filed pursuant to Rule 104(b). See Exhibit J for the required information. Semutang, EPR Ely Limited, Copperbelt, EOS I, EOS II, Crisa, Narva, Moravske Teplarny a.s., Plzenska Energetika s.r.o, Desebro, Midlands Non-utility service agreement, as amended, among Cinergy, non-utility subsidiaries of Cinergy and Services (pursuant to Rel. No. 35-26662, dated 2/7/97). ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued) Pursuant to the agreement between Services and Cinergy's domestic and foreign subsidiaries, Services allocates a proportional share of certain costs to Cinergy's system companies, including its EWGs, foreign utility holding companies and/or FUCO subsidiaries. These transactions are reported in Cinergy's U-13-60 for the year ended December 31, 1998. Part II See the following exhibits: H Organizational chart showing the relationship of the various EWGs and FUCOs to other system companies. I-1 Financial Statements for Semutang for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-2 Financial Statements for Copperbelt for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-3 Financial Statements for EOS I for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-4 Financial Statements for EOS II for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-5 Financial Statements for Crisa for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-6 Financial Statements for Moravske Teplarny a.s. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-7 Financial Statements for Plzenska Energetika s.r.o. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-8 Financial Statements for Midlands for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) Note:As previously mentioned, Cinergy has not obtained complete, meaningful financial statements for EPR Ely Limited, Narva, and Desebro as of December 31, 1998. Part III Cinergy had an aggregate investment of $619 million ($610 million in FUCOs and intermediate subsidiaries and $9 million in EWGs) at December 31, 1998. The ratio of Cinergy's aggregate investment in FUCOs and EWGs to its investment in domestic public utility subsidiary companies is 23%. ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS Consolidating Financial Statements, Schedules, and Notes Financial Statements and Notes 1 through 18 to the Financial Statements are incorporated herein by reference, in Exhibit A-1 (page 60), in the Cinergy Annual Report on Form 10-K for 1998 (Item 8. Financial Statements and Supplementary Data). Financial Statements and Notes 1 through 18 to the Financial Statements are incorporated herein by reference, in Exhibit A-3 (page 60), in the CG&E Annual Report on Form 10-K for 1998 (Item 8. Financial Statements and Supplementary Data). Financial Statements and Notes 1 through 18 to the Financial Statements are incorporated herein by reference, in Exhibit A-4 (page 60), in the PSI Annual Report on Form 10-K for 1998 (Item 8. Financial Statements and Supplementary Data). Financial Statements and Notes 1 through 18 to the Financial Statements are incorporated herein by reference, in Exhibit A-5 (page 60), in the ULH&P Annual Report on Form 10-K for 1998 (Item 8. Financial Statements and Supplementary Data). Exhibits The financial statements for certain of the direct and indirect subsidiaries of Global Resources (See "Item 1. System Companies and Investments Therein as of December 31, 1998" for a listing of Global Resources' subsidiaries) have been omitted. These financial statements concern companies who are either inactive or solely engaged in holding, directly or indirectly, Global Resources' investments in EWGs or FUCOs. The financial statements filed herein for Global Resources are designated as Exhibits F-7 and I-1 through I-7. F-1 Consent of Independent Public Accountants. F-2 Consolidating Financial Statements of Cinergy for 1998. F-3 Consolidating Financial Statements of CG&E for 1998. F-4 Consolidating Financial Statements of Investments for 1998. (Filed pursuant to Rule 104(b).) F-5 Consolidating Financial Statements of Capital & Trading for 1998. (Filed pursuant to Rule 104(b).) F-6 Consolidating Financial Statements of Solutions for 1998. (Filed pursuant to Rule 104(b).) F-7 Consolidating Financial Statements of Global Resources for 1998. (Filed pursuant to Rule 104(b).) F-8 Consolidating Financial Statements of Avon Energy for 1998. (Filed pursuant to Rule 104(b).) F-9 Financial Statements of Cadence for 1998. (Filed pursuant to Rule 104(b).) F-10 Financial Statements of Centrus, LLP for 1998. (Filed pursuant to Rule 104(b).) 56 ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued) F-11 Financial Statements of CinCap IV, LLC for 1998. (Filed pursuant to Rule 104(b).) F-12 Financial Statements of Trigen-Cinergy for 1998. (Filed pursuant to Rule 104(b).) F-13 Financial Statements of Trigen-Cinergy Cincinnati for 1998. (Filed pursuant to Rule 104(b).) F-14 Financial Statements of Trigen-Cinergy Solutions of Tuscola, LLC for 1998. (Filed pursuant to Rule 104(b).) F-15 Financial Statements of Reliant Services, LLC for 1998. (Filed pursuant to Rule 104(b).) F-16 Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. H Organizational chart showing the relationship of EWGs and FUCOs to other system companies. I-1 Financial Statements of Semutang for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-2 Financial Statements of Copperbelt for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-3 Financial Statements of EOS I for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-4 Financial Statements of EOS II for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-5 Financial Statements of Crisa for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-6 Financial Statements of Moravske Teplarny a.s. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-7 Financial Statements of Plzenska Energetika s.r.o. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-8 Financial Statements of Midlands for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) J Response to Item 9, Part I (c) for all EWGs and FUCOs. (Filed pursuant to Rule 104(b).) ITEM 10. EXHIBITS Copies of the documents listed below which are identified with an asterisk (*) have heretofore been filed with the SEC and are incorporated herein by reference and made a part hereof. Exhibits not so identified are filed herewith unless otherwise stated. EXHIBIT DESIGNATION NATURE OF EXHIBIT A-1*Annual Report of Cinergy on Form 10-K for the year ended December 31, 1998. (File No. 1-11377.) A-2*1999 Proxy Statement and 1998 Financial Report for the year ended December 31, 1998. (File No. 1-11377.) A-3*Annual Report of CG&E on Form 10-K for the year ended December 31, 1998. (File No. 1-1232.) A-4*Annual Report of PSI on Form 10-K for the year ended December 31, 1998. (File No. 1-3543.) A-5*Annual Report of ULH&P on Form 10-K for the year ended December 31, 1998. (File No. 2-7793.) B-1 *Certificate of Incorporation of Cinergy. (Exhibit to Cinergy's 1993 Form 10-K in File No. 1-11377.) B-2 *By-laws of Cinergy as amended October 15, 1998. (Exhibit to Cinergy's October 15, 1998, Form 8-K in File No. 1-11377.) B-3 *Amended Articles of Incorporation of CG&E effective October 23, 1996. (Exhibit to CG&E's September 30, 1996, Form 10-Q in File No. 1-1232.) B-4 *Regulations of CG&E as amended, adopted April 25, 1996. (Exhibit to CG&E's March 31, 1996, Form 10-Q, in File No. 1-1232.) B-5 *Amended Articles of Consolidation of PSI as amended April 20, 1995. (Exhibit to PSI's June 30, 1995, Form 10-Q in File No. 1-3543.) B-6 *Amendment to Article D of the Amended Articles of Consolidation of PSI effective July 10, 1997. (Exhibit to PSI's 1997 Form 10-K in File No. 1-3543.) B-7 *By-laws of PSI as amended December 17, 1996. (Exhibit to PSI's March 31, 1997, Form 10-Q in File No. 1-3543.) B-8 *Restated Articles of Incorporation of ULH&P made effective May 7, 1976. (Exhibit to ULH&P's Form 8-K, May 1976, in File No. 2-7793.) B-9 *By-laws of ULH&P as amended, adopted May 8, 1996. (Exhibit to ULH&P's March 31, 1996, Form 10-Q in File No. 2-7793.) B-10 *Amendment to Restated Articles of Incorporation of ULH&P (Article Third) and Amendment to the By-Laws of ULH&P (Article 1), both effective July 24, 1997. (Exhibit to ULH&P's Form 10-K in File No. 2-7793.) ITEM 10. EXHIBITS (Continued) EXHIBIT DESIGNATION NATURE OF EXHIBITS B-11 *Certificate of Incorporation of Services. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-12 *By-laws of Services. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-13 *Articles of Incorporation of Tri-State. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-14 *Regulations of Tri-State. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-15 *Articles of Incorporation of Lawrenceburg. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-16 *By-laws of Lawrenceburg. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-17 *Articles of Incorporation of West Harrison as amended. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-18 *By-laws of West Harrison. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-19 *Articles of Incorporation of Miami as amended. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-20 *By-laws of Miami. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-21 *Articles of Incorporation of KO Transmission. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-22 *By-laws of KO Transmission. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-23 *Articles of Incorporation of South Construction. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-24 *By-laws of South Construction. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-25 *Certificate of Incorporation of Investments. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-26 *By-laws of Investments. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-27 *Articles of Incorporation of Cinergy-Cadence, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-28 Amended Articles of Incorporation of Cinergy-Cadence, Inc. (The sole purpose of the amendment was to change PSI Power Resource Operations, Inc.'s name to Cinergy-Cadence, Inc. Copies of the amended Articles of Incorporation are available upon request.) B-29 *By-laws of Cinergy-Cadence, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) ITEM 10. EXHIBITS (Continued) EXHIBIT DESIGNATION NATURE OF EXHIBITS B-30 *Certificate of Formation of Cadence. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-31 *Amended Articles of Incorporation of Capital & Trading. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-32 *By-laws of Capital & Trading. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-33 *Certificate of Formation of CinCap IV, LLC. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-34 Certificate of Formation of CinCap V, LLC. B-35 Certificate of Formation of CinCap VI, LLC. B-36 Certificate of Formation of CinCap VII, LLC. B-37 Certificate of Formation of CinCap VIII, LLC. B-38 Certificate of Formation of Westwood Operating Company, LLC. B-39 Certificate of Formation of CinPower I, LLC. B-40 Amended Agreement of Limited Liability Company of ProEnergy. B-41 *Certificate of Incorporation of Communications. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-42 *By-laws of Communications. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-43 *Articles of Incorporation of Engineering. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-44 *Regulations of Engineering. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-45 Certificate of Incorporation of Cinergy - Centrus, Inc. B-46 By laws of Cinergy - Centrus, Inc. B-47 Partnership Agreement of Centrus, LLP. (The referenced agreement is with one or more unaffiliated third parties, contains sensitive, competitive information, and is subject to confidentiality restrictions. Upon request, Cinergy will use its best efforts to make such agreement available to the SEC's staff.) B-48 Certificate of Incorporation of Cinergy - Centrus Communications, Inc. B-49 By-laws of Cinergy - Centrus Communications, Inc. B-50 *Certificate of Incorporation of Cinergy Resources, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-51 *By-laws of Cinergy Resources, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-52 *Certificate of Incorporation of Solutions. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-53 *By-laws of Solutions. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-54 Certificate of Incorporation of Cinergy Business Solutions, Inc. B-55 By-laws of Cinergy Business Solutions, Inc. B-56 Articles of Incorporation of Cinergy Customer Care, Inc. (Filed under cover of Form SE.) B-57 By-laws of Cinergy Customer Care, Inc. B-58 Certificate of Incorporation of Cinergy Solutions of Tuscola, Inc. B-59 By-laws of Cinergy Solutions of Tuscola, Inc. B-60 Certificate of Formation of Energy Equipment Leasing LLC. (Filed under cover of Form SE.) B-61 *Certificate of Formation of Trigen-Cinergy. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-62 Limited Liability Company Agreement of Trigen-Cinergy Solutions of Baltimore LLC. (The referenced agreement is with one or more unaffiliated third parties, contains sensitive, competitive information, and is subject to confidentiality restrictions. Upon request, Cinergy will use its best efforts to make such agreement available to the SEC's staff.) B-63 Certificate of Formation of Trigen-Cinergy Solutions of Boca Raton, LLC. B-64 *Articles of Organization of Trigen-Cinergy Cincinnati. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-65 *Certificate of Formation of Trigen-Cinergy Illinois. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-66 Certificate of Formation of Trigen-Cinergy Solutions of Orlando LLC. B-67 Limited Liability Company Agreement of Trigen-Cinergy Solutions of St. Paul LLC. (The referenced agreement is with one or more unaffiliated third parties, contains sensitive, competitive information, and is subject to confidentiality restrictions. Upon request, Cinergy will use its best efforts to make such agreement available to the SEC's staff.) B-68 Certificate of Formation of Trigen-Cinergy Solutions of Tuscola, LLC. B-69 Certificate of Incorporation of Cinergy Supply Network, Inc. B-70 By-laws of Cinergy Supply Network, Inc. B-71 Articles of Organization of Reliant Services, LLC. B-72 *Articles of Incorporation of Technology. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-73 *By-laws of Technology. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-74 *Amended Articles of Incorporation of Enertech. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-75 *Regulations of Enertech. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-76 Certificate of Incorporation of Global Resources. B-77 By-laws of Global Resources. B-78 *Certificate of Incorporation of Global Power. (Formerly Cinergy Investments MPI, Inc.) (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-79 *By-laws of Global Power. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-80 Certificate of Incorporation of Cinergy Global Ely, Inc. B-81 By-laws of Cinergy Global Ely, Inc. B-82 Articles of Association of EPR Ely Power Limited. B-83 Articles of Association of EPR Ely Limited. B-84 Articles of Association of Cinergy Global Power Services Limited. B-85 Articles of Association of Cinergy Global Power Limited. B-86 Articles of Association of Cinergy Global Power (UK) Limited. B-87 Articles of Association of MPI International Limited. B-88 Certificate of Incorporation of Cinergy Global San Gorgonio, Inc. B-89 By-laws of Cinergy Global San Gorgonio, Inc. B-90 Certificate of Incorporation of Cinergy Global Holdings, Inc. B-91 By-laws of Cinergy Global Holdings, Inc. B-92 *Memorandum of Association of Cinergy Global Hydrocarbons Pakistan (formerly Cinergy MPI I, Inc.). (Memorandums of Association of Cinergy MPI II, Inc. through Cinergy MPI XV, Inc. are identical to that of Cinergy Global Hydrocarbons Pakistan and will be furnished upon request.) (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-93 *Articles of Association of Cinergy Global Hydrocarbons Pakistan. (Articles of Association of Cinergy MPI II, Inc. through Cinergy MPI XV, Inc. are identical to that of Cinergy Global Hydrocarbons Pakistan and will be furnished upon request.) (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-94 Articles of Association of Cinergy Holdings B.V. (Filed under cover of Form SE.) B-95 Articles of Association of Cinergy Zambia B.V. (Filed under cover of Form SE.) B-96 Articles of Association of Copperbelt. B-97 Articles of Association of Cinergy Turbines B.V. (Filed under cover of Form SE.) B-98 Certificate of Incorporation of EOS I B-99 Certificate of Incorporation of EOS II. B-100Articles of Association of Cinergy Hydro B.V. (Filed under cover of Form SE.) B-101 Articles of Association of Crisa. B-102 Articles of Association of Vendresse Limited. B-103 Articles of Association of Cinergy 1 B.V. (Filed under cover of Form SE.) B-104 Statement of Incorporation of Startekor. B-105 Statement of Incorporation of Narva. B-106Articles of Association of Cinergy Global Resources 1 B.V. (Filed under cover of Form SE.) B-107Extract from the Companies Register for Moravske Teplarny a.s. (Filed under cover of Form SE.) B-108Extract from the Companies Register for Plzenska Energetika s.r.o. (Filed under cover of Form SE.) B-109Articles of Association of Cinergy Global Resources a.s. (Filed under cover of Form SE.) B-110 Articles of Association of Cinergy 2 B.V. (Filed under cover of Form SE.) B-111 Articles of Association of Semutang. (Filed under cover of Form SE.) B-112*Certificate of Incorporation of Cinergy UK. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-113 *By-laws of Cinergy UK. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-114*Articles of Association of Avon Energy. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-115*Articles of Association of Avon Energy Partners PLC. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-116*Articles of Association of Midlands. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-117*Articles of Incorporation of Argentina. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-118 *By-laws of Argentina. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-119*Articles of Incorporation of PSI Energy Argentina, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-120*By-laws of PSI Energy Argentina, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-121*Articles of Incorporation of Costanera. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-122 *By-laws of Costanera. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-123*Certificate of Incorporation on name change of MPI International Limited. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-124Articles of Organization of San Gorgonio Westwinds II, LLC. (Filed under cover of Form SE.) B-125 Certificate of Incorporation of Desebro. (Filed under cover of Form SE.) C-1 *Original Indenture (First Mortgage Bonds) dated September 1, 1939, between PSI and The First National Bank of Chicago, as Trustee (Exhibit A-Part 3 in File No. 70-258), and LaSalle National Bank as successor Trustee (Supplemental Indenture dated March 30, 1984). C-2 *Twenty-fifth Supplemental Indenture between PSI and The First National Bank of Chicago dated September 1, 1978. (Exhibit to File No. 2-62543.) C-3 *Thirty-fifth Supplemental Indenture between PSI and The First National Bank of Chicago dated March 30, 1984. (Exhibit to PSI's 1984 Form 10-K in File No. 1-3543.) C-4 *Forty-second Supplemental Indenture between PSI and LaSalle National Bank dated August 1, 1988. (Exhibit to PSI's 1988 Form 10-K in File No. 1-3543.) C-5 *Forty-fourth Supplemental Indenture between PSI and LaSalle National Bank dated March 15, 1990. (Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.) C-6 *Forty-fifth Supplemental Indenture between PSI and LaSalle National Bank dated March 15, 1990. (Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.) C-7 *Forty-sixth Supplemental Indenture between PSI and LaSalle National Bank dated June 1, 1990. (Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.) C-8 *Forty-seventh Supplemental Indenture between PSI and LaSalle National Bank dated July 15, 1991. (Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.) C-9 *Forty-eighth Supplemental Indenture between PSI and LaSalle National Bank dated July 15, 1992. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-10 *Forty-ninth Supplemental Indenture between PSI and LaSalle National Bank dated February 15, 1993. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-11 *Fiftieth Supplemental Indenture between PSI and LaSalle National Bank dated February 15, 1993. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-12 *Fifty-first Supplemental Indenture between PSI and LaSalle National Bank dated February 1, 1994. (Exhibit to PSI's 1993 Form 10-K in File No. 1-3543.) C-13 *Indenture (Secured Medium-term Notes, Series A), dated July 15, 1991, between PSI and LaSalle National Bank, as Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2, dated July 15, 1993, in File No. 1-3543.) C-14 *Indenture (Secured Medium-term Notes, Series B), dated July 15, 1992, between PSI and LaSalle National Bank, as Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2, dated July 15, 1993, in File No. 1-3543.) C-15 *Loan Agreement between PSI and the City of Princeton, Indiana dated as of November 7, 1996. (Exhibit to PSI's September 30, 1996, Form 10-Q in File No. 1-3543.) C-16 *Loan Agreement between PSI and the City of Princeton, Indiana dated as of February 1, 1997. (Exhibit to Cinergy's 1996 Form 10-K in File No. 1-11377.) C-17 *Indenture dated November 15, 1996, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to Cinergy's 1996 Form 10-K in File No. 1-11377.) C-18 *First Supplemental Indenture (6.35% due 2006) dated November 15, 1996, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to Cinergy's 1996 Form 10-K in File No. 1-11377.) C-19 *Third Supplemental Indenture dated as of March 15, 1998, between PSI and the Fifth Third Bank, as Trustee. (Exhibit to PSI's 1997 Form 10-K in File No. 1-3543.) C20 *Fourth Supplemental Indenture dated as of August 5, 1998, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to PSI's 1998 Form 10-K in File No. 1-3543.) C-21 *Fifth Supplemental Indenture dated as of December 15, 1998, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to PSI's 1998 form 10-K in File No. 1-3543.) C-22 *Unsecured Promissory Note dated as of October 14, 1998, between PSI and the Rural Utilities Service. (Exhibit to PSI's 1998 Form 10-K in File No. 1-3543.) C-23 *Loan Agreement between PSI and the Indiana Department Finance Authority dated as of July 15, 1998. (Exhibit to PSI's June 30, 1998, Form 10-Q in File No. 1-3543.) C-24 *Original Indenture (First Mortgage Bonds) between CG&E and The Bank of New York (as successor Trustee) dated as of August 1, 1936. (Exhibit to CG&E's Registration Statement No. 2-2374.) C-25 *Fourteenth Supplemental Indenture between CG&E and The Bank of New York dated as of November 2, 1972. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-26 *Thirty-third Supplemental Indenture between CG&E and The Bank of New York dated as of September 1, 1992. (Exhibit to CG&E's Registration Statement No. 33-53578.) C-27 *Thirty-fourth Supplemental Indenture between CG&E and The Bank of New York dated as of October 1, 1993. (Exhibit to CG&E's September 30, 1993, Form 10-Q in File No. 1-1232.) C-28 *Thirty-fifth Supplemental Indenture between CG&E and The Bank of New York dated as of January 1, 1994. (Exhibit to CG&E's Registration Statement No. 33-52335.) C-29 *Thirty-sixth Supplemental Indenture between CG&E and The Bank of New York dated as of February 15, 1994. (Exhibit to CG&E's Registration Statement No. 33-52335.) C-30 *Thirty-seventh Supplemental Indenture between CG&E and The Bank of New York dated as of October 4, 1996. (Exhibit to Cinergy's 1996 Form 10-K in File No. 1-11377.) C-31 *Loan Agreement between CG&E and County of Boone, Kentucky dated as of February 1, 1985. (Exhibit to CG&E's 1984 Form 10-K in File No. 1-1232.) C-32 *Repayment Agreement between CG&E and The Dayton Power and Light Company dated as of December 23, 1992. (Exhibit to CG&E's 1992 Form 10-K in File No. 1-1232.) C-33 *Loan Agreement between CG&E and County of Boone, Kentucky dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-34 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of December 1, 1985. (Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.) C-35 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of December 1, 1985. (Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.) C-36 *Loan Agreement between CG&E and the State of Ohio Air Quality Development Authority dated as of September 13, 1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in File No. 1-1232.) C-37 *Loan Agreement between CG&E and the State of Ohio Air Quality Development Authority dated as of September 13, 1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in File No. 1-1232.) C-38 *Loan Agreement between CG&E and State of Ohio Water Development Authority dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-39 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-40 *Original Indenture (Unsecured Debt Securities) between CG&E and The Fifth Third Bank dated as of May 15, 1995. (Exhibit to CG&E's Form 8-A dated July 24, 1995, in File No. 1-1232.) C-41 *First Supplemental Indenture between CG&E and The Fifth Third Bank dated as of June 1, 1995. (Exhibit to CG&E's June 30, 1995, Form 10-Q in File No. 1-1232.) C-42 *Second Supplemental Indenture between CG&E and The Fifth Third Bank dated as of June 30, 1995. (Exhibit to CG&E's Form 8-A dated July 24, 1995, in File No. 1-1232.) C-43 *Third Supplemental Indenture between CG&E and The Fifth Third Bank dated as of October 9, 1997. (Exhibit to CG&E's September 30, 1997, Form 10-Q in File No. 1-1232.) C-44 *Fourth Supplemental Indenture between CG&E and The Fifth Third Bank dated as of April 1, 1998. (Exhibit to CG&E's March 31, 1998, Form 10-Q in File No. 1-1232.) C-45 *Fifth Supplemental Indenture between CG&E and The Fifth Third Bank dated as of June 9, 1998. (Exhibit to CG&E's June 30, 1998, Form 10-Q in File No. 1-1232.) C-46 *Original Indenture (First Mortgage Bonds) between ULH&P and The Bank of New York dated as of February 1, 1949. (Exhibit to ULH&P's Registration Statement No. 2-7793.) C-47 *Fifth Supplemental Indenture between ULH&P and The Bank of New York dated as of January 1, 1967. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-48 *Thirteenth Supplemental Indenture between ULH&P and The Bank of New York dated as of August 1, 1992. (Exhibit to ULH&P's 1992 Form 10-K in File No. 2-7793.) C-49 *Original Indenture (Unsecured Debt Securities) between ULH&P and The Fifth Third Bank dated as of July 1, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No. 2-7793.) C-50 *First Supplemental Indenture between ULH&P and The Fifth Third Bank dated as of July 15, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No. 2-7793.) C-51 *Second Supplemental Indenture between ULH&P and The Fifth Third Bank dated as of April 30, 1998. (Exhibit to ULH&P's March 31, 1998 Form 10-Q in File No. 2-7793.) C-52 *Third Supplemental Indenture between ULH&P and The Fifth Third Bank dated as of December 8, 1998. (Exhibit to ULH&P's 1998 Form 10-K in File No. 2-7793.) C-53 *Base Indenture dated as of October 15, 1998, between Global Resources and The Fifth Third Bank as Trustee. (Exhibit to Cinergy's September 30, 1998, Form 10-Q in File No. 1-11377.) C-54 *First Supplemental Indenture dated as of October 15, 1998, between Cinergy and The Fifth Third Bank as Trustee. (Exhibit to Cinergy's September 30, 1998, Form 10-Q in File No. 1-11377.) C-55 *Indenture dated as of December 16, 1998, between Cinergy and The Fifth Third Bank. (Exhibit to Cinergy's 1998 Form 10-K in File No. 1-11377.) C-56 *Agreement for Purchase and Sale of Assets, dated March 31, 1994, by and between Columbia Gas as Seller and KO Transmission as Buyer. (Exhibit to Cinergy's Form U5B filed January 23, 1995.) C-57 *Agreement for Purchase and Sale of Line AM-4, dated March 31, 1994, by and between Columbia Gas as Seller and KO Transmission as Buyer. (Exhibit to Cinergy's Form U5B filed January 23, 1995.) D-1 *Agreement between Cinergy and subsidiary companies for filing consolidated income tax returns and for allocation of consolidated income tax liabilities and benefits. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) D-2 Schedule detailing reallocation of 1997 taxes in accordance with agreement filed as Exhibit D-1 (Filed pursuant to Rule 104(b).) F-1 Consent of Independent Public Accountants. F-2 Consolidating Financial Statements of Cinergy for 1998. F-3 Consolidating Financial Statements of CG&E for 1998. F-4Consolidating Financial Statements of Investments for 1998. (Filed pursuant to Rule 104(b).) F-5Consolidating Financial Statements of Capital & Trading for 1998. (Filed pursuant to Rule 104(b).) F-6Consolidating Financial Statements of Solutions for 1998. (Filed pursuant to Rule 104(b).) F-7Consolidating Financial Statements of Global Resources for 1998. (Filed pursuant to Rule 104(b).) F-8Consolidating Financial Statements of Avon Energy for 1998. (Filed pursuant to Rule 104(b).) F-9 Financial Statements of Cadence for 1998. (Filed pursuant to Rule 104(b).) F-10 Financial Statements of Centrus, LLP for 1998. (Filed pursuant to Rule 104(b).) F-11 Financial Statements of CinCap IV, LLC for 1998. (Filed pursuant to Rule 104(b).) F-12 Financial Statements of Trigen-Cinergy for 1998. (Filed pursuant to Rule 104(b).) F-13Financial Statements of Trigen-Cinergy Cincinnati for 1998. (Filed pursuant to Rule 104(b).) F-14Financial Statements of Trigen-Cinergy Solutions of Tuscola, LLC for 1998. (Filed pursuant to Rule 104(b).) F-15Financial Statements of Reliant Services, LLC for 1998. (Filed pursuant to Rule 104(b).) F-16Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. F-17Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of CG&E. (Filed under cover of Form SE.) F-18Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form No. 1 of PSI. (Filed under cover of Form SE.) F-19Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of ULH&P. (Filed under cover of Form SE.) F-20Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of West Harrison to the Indiana Utility Regulatory Commission (IURC). (Filed under cover of Form SE.) F-21Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of Lawrenceburg to the IURC. (Filed under cover of Form SE.) F-22 The FERC Form No. 2A for KO Transmission. (Filed under cover of Form SE.) F-23The Annual Report of Trigen-Cinergy Cincinnati to the Public Utilities Commission of Ohio. (Filed under the Cover of Form SE.) G Financial Data Schedules for Cinergy and subsidiaries. (Included in electronic submission only.) H Organizational chart showing relationship of EWGs and FUCOs to other system companies. I-1 Financial Statements of Semutang for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-2 Financial Statements of Copperbelt for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-3 Financial Statements of EOS I for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-4 Financial Statements of EOS II for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-5 Financial Statements of Crisa for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-6 Financial Statements of Moravske Teplarny a.s. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-7 Financial Statements of Plzenska Energetika s.r.o. for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) I-8 Financial Statements of Midlands for the year ended December 31, 1998. (Filed pursuant to Rule 104(b).) J Response to Item 9, Part I (c) for all EWGs and FUCOs. (Filed pursuant to Rule 104(b).) SIGNATURE Each undersigned system company has duly caused this annual report to be signed on its behalf by the undersigned thereunto duly authorized pursuant to the requirements of the Public Utility Holding Company Act of 1935. The signature of each undersigned company shall be deemed to relate only to matters having reference to such company or its subsidiaries. CINERGY CORP. By: /s/William L. Sheafer William L. Sheafer Vice President and Treasurer Date: April 30, 1999 EX-99 2 CINCAP V, LLC CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CINCAP V, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: CinCap V, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 21st day of July, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Organizer # 32635 EX-99 3 CINCAP VI, LLC CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CinCap VI, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: CinCap VI, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 18th day of September, 1998. /s/ Julia S. Janson Julia S. Janson Sole Organizer #35809 EX-99 4 CINCAP VII, LLC CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CinCap VII, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: CinCap VII, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 2nd day of December, 1998. /s/ Richard G. Beach Richard G. Beach Sole Organizer Doc. 41531 EX-99 5 CINCAP VIII, LLC CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CinCap VIII, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: CinCap VIII, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 2nd day of December, 1998. /s/ Richard G. Beach Richard G. Beach Sole Organizer Doc. 41532 EX-99 6 WESTWOOD OPERATING CO LLC CERT OF FORMATION CERTIFICATE OF FORMATION OF Westwood Operating Company, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: Westwood Operating Company, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Company by consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 2nd day of October, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Organizer Document #: 36531 EX-99 7 CINPOWER I, LLC CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CINPOWER I, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: CinPower I, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 12th day of June, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Organizer #: 30573 EX-99 8 AMEND AGREEMENT OF LIMITED LIAB CO - PROENERGY AMENDED AND RESTATED AGREEMENT OF LIMITED LIABILITY COMPANY, dated as of June 18, 1998 (the "Agreement"), of Producers Energy Marketing, LLC (the "Company"), by Cinergy Capital & Trading, Inc., as the sole member of the Company (the "Member"). RECITALS A. The Company was formed on October 27, 1995 by Apache Gathering Company ("Apache"), Oryx Gas Marketing Limited Partnership ("Oryx") and Parker & Parsley Energy Trading Company ("P&P") under the Delaware Limited Liability Company Act (as amended from time to time, the "Act"). B. Oryx and Apache acquired all of P&P's membership interest in the Company as of December 31, 1997. C. On the date hereof, Cinergy Corp. ("Cinergy") acquired all of Apache's and Oryx's membership interests in the Company (the "Acquisition"). D. Immediately following closing of the Acquisition, Cinergy contributed all of the membership interests in the Company to the Member through an Assignment and Assumption of Limited Liability Company Member Interest of even date. E. The Member now desires to amend and restate the Agreement, in accordance with the Act, as to the affairs of the Company and the conduct of its business. AGREEMENT ARTICLE I Definitions Section 1.1 Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Act. ARTICLE II General Provisions Section 2.1 Company Name. The name of the Company is "Producers Energy Marketing, LLC." The business of the Company may be conducted upon compliance with all applicable laws under any other name designated by the member(s). Section 2.2 Registered Office; Registered Agent. (a) The Company shall maintain a registered office in the State of Delaware at, and the name and address of the Company's registered agent in the State of Delaware is, Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware. (b) The business address of the Company is 616 F.M. 1960 West, Suite 800, Houston, Texas, or such other place as the Member shall designate. Section 2.3 Nature of Business Permitted; Powers. The Company may carry on any lawful business, purpose or activity. The Company shall possess and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business purposes or activities of the Company. Section 2.4 Business Transactions of a Member with the Company. In accordance with Section 18-107 of the Act, a member may transact business with the Company and, subject to applicable law, shall have the same rights and obligations with respect to any such matter as a person who is not a member. Section 2.5 Fiscal Year. The fiscal year of the Company (the "Fiscal Year") for financial statement purposes shall end on December 31 of each year. ARTICLE III Member(s) Section 3.1 Admission of Member(s). The initial ownership of Common Interests (as herein defined) is listed on Schedule 1 attached hereto. The Company shall be required to update Schedule 1 from time to time as necessary to reflect accurately the information therein. New member(s) shall be admitted only with the approval of the Member. Section 3.2 Classes. (a) The membership interests of the Company shall consist of common membership interests ("Common Interests"). (b) All Common Interests shall be identical with each other in every respect, except that, should additional member(s) be admitted, Common Interests of each member shall reflect its capital account relative to the other member(s). Section 3.3 Liability of Member(s). (a) All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member. (b) Except as otherwise expressly required by law, a member shall not have any liability in excess of (i) the amount of its capital contribution to the Company, (ii) its share of any assets and undistributed profits of the Company, (iii) its obligation to make other payments, if any, expressly provided for in this Agreement or any amendment hereto and (iv) the amount of any distributions wrongfully distributed to it. Section 3.4 Access to and Confidentiality of Information; Records. (a) Any member shall have the right to obtain from the Company from time to time upon reasonable demand for any purpose reasonably related to the member's interest as a member of the Company, the documents and other information described in Section 18-305(a) of the Act. (b) Any demand by a member pursuant to this Section 3.4 shall be in writing and shall state the purpose of such demand. Section 3.5 Meetings of Member(s). (a) Meetings of the member(s) may be called at any time by any member. (b) Except as otherwise provided by law, if additional member(s) are admitted, a majority of the member(s), determined in proportion to their respective interests in the Company, entitled to vote at the meeting shall constitute a quorum at all meetings of the member(s). (c) Any action required to or which may be taken at a meeting of member(s) may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by all member(s). (d) Regular meetings of the member(s) shall be held at least annually. Member(s) may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. Section 3.6 Vote. Except as specifically set forth herein, the business and affairs of the Company shall be managed by or under the direction of the member(s) by majority vote. Section 3.7 Notice. Meetings of the member(s) may be held at such places and at such times as the member(s) may from time to time determine. Any member may at any time call a meeting of the member(s). Written notice of the time, place, and purpose of such meeting shall be served by registered or certified prepaid, first class mail, via overnight courier using a nationally reputable courier, or by fax or cable, upon each member and shall be given at least two (2) business days prior to the time of the meeting. No notice of a meeting need be given to any member if a written waiver of notice, executed before or after the meeting by such member thereunto duly authorized, is filed with the records of the meeting, or to any member who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her. A waiver of notice need not specify the purposes of the meeting. Section 3.8 Delegation of Powers. Subject to any limitations set forth in the Act, the member(s) may delegate any of its powers to officers of the Company or to committees consisting of persons who may or may not be member(s). Every officer or committee shall, in the exercise of the power so delegated, comply with any restrictions that may be imposed on them by the member(s). Section 3.9 Withdrawals and Removals of Member(s). No member may resign, withdraw or be removed as a member of the Company without the written consent of all of the member(s). ARTICLE IV Management Section 4.1 Officers. (a) Election, Term of Office. Officers shall be elected annually by the member(s). Except as provided in paragraphs (b) or (c) of this Section 4.1, each officer shall hold office until his or her successor shall have been chosen and qualified. Any two offices, except those of the President and the Secretary, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law or this Agreement to be executed, acknowledged or verified by any two or more officers. (b) Resignations and Removals. Any officer may resign his or her office at any time by delivering a written resignation to the member(s). Unless otherwise specified therein, such resignation shall take effect upon delivery. Any officer may be removed from office with or without cause by either the member(s) or the President. (c) Vacancies and Newly Created Offices. If any vacancy shall occur in any office by reason of death, resignation, removal, disqualification or other cause, or if any new office shall be created, such vacancies or newly created offices may be filled by the President, subject to approval and election by the member(s). (d) Conduct of Business. Subject to the provisions of this Agreement, the day-to-day operations of the Company shall be managed by its officers and such officers shall have full power and authority to make all business decisions, enter into all commitments and take such other actions in connection with the business and operations of the Company as they deem appropriate. Such officers shall perform their duties in a manner consistent with this Agreement and with directions which may be given from time to time by the member(s). (e) President. Subject to the further directives of the member(s), the President shall have general and active management of the business of the Company subject to the supervision of the member(s), shall see that all orders and resolutions of the member(s) are carried into effect and shall have such additional powers and authority as are specified by the provisions of this Agreement. (f) Secretary. The Secretary shall attend all meetings of the member(s) and record all the proceedings of the meetings and all actions taken thereat in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the member(s), and shall perform such other duties as may be prescribed by the member(s) or the President. The Assistant Secretary, if there be one, shall, in the absence of the Secretary or in the event of the Secretary's inability 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 member(s) may from time to time prescribe. (g) Other Officers. The member(s) from time to time may appoint such other subordinate officers or agents as it may deem advisable, each of whom shall have such title, hold office for such period, have such authority and perform such duties as the member(s) may determine in its sole discretion. The member(s) from time to time may delegate to one or more officers or agents the power to appoint any such subordinate officers or agents and prescribe their respective rights, terms of office, authorities and duties. (h) Officers as Agents; Authority. The officers, to the extent of their powers set forth in this Agreement and/or delegated to them by the member(s), are agents and managers of the Company for the purpose of the Company's business, and the actions of the officers taken in accordance with such powers shall bind the Company. Section 4.2 Reliance by Third Parties. Persons dealing with the Company are entitled to rely conclusively upon the power and authority of the member(s) herein set forth. Section 4.3 Expenses. Except as otherwise provided in this Agreement, the Company shall be responsible for and shall pay all expenses out of funds of the Company determined by the member(s) to be available for such purpose, provided that such expenses are those of the Company or are otherwise incurred by the member(s) in connection with this Agreement, including, without limitation: (a) all expenses related to the business of the Company and all routine administrative expenses of the Company, including the maintenance of books and records of the Company, the preparation and dispatch to any member(s) of checks, financial reports, tax returns and notices required pursuant to this Agreement or in connection with the holding of any meetings of the member(s); (b) all expenses incurred in connection with any litigation or arbitration involving the Company (including the cost of any investigation and preparation) and the amount of any judgment or settlement paid in connection therewith; (c) all expenses for indemnity or contribution payable by the Company to any person; (d) all expenses incurred in connection with the collection of amounts due to the Company from any person; (e) all expenses incurred in connection with the preparation of amendments to this Agreement; and (f) expenses incurred in connection with the liquidation, dissolution and winding up of the Company. ARTICLE V Finance Section 5.1 Form of Contribution. The contribution of a member to the Company must be in cash or property, provided that if there is more than one member, all member(s) must consent in writing to contributions of property. To the extent there is more than one member, additional contributions in the same proportion shall be made by each member, except as may be approved by all member(s). A capital account shall be maintained for each member, to which contributions and profits shall be credited and against which distributions and losses shall be charged. At any time that there is more than one member, capital accounts shall be maintained in accordance with the tax accounting principles prescribed by the Treasury Regulations promulgated under Code Section 704 (the "Allocation Regulations"), so that the tax allocations provided in this Agreement shall, to the extent possible, have "substantial economic effect" within the meaning of the Allocation Regulations, or, if such allocations cannot have substantial economic effect, so that they may be deemed to be "in accordance with the member(s') interests in the Company" within the meaning of the Allocation Regulations. Section 5.2 Allocation of Profits and Losses. The profits and losses of the Company shall be allocated entirely to the Member or, if additional member(s) are admitted, the member(s) in proportion to their respective capital accounts. Section 5.3 Allocation of Distributions. The distributions of the Company shall be allocated entirely to the Member or, if additional member(s) are admitted, the member(s) in proportion to their respective capital accounts. ARTICLE VI Distribution Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section 18-605 of the Act, a member may receive distributions from the Company in any form other than cash, and may be compelled to accept a distribution of any asset in kind from the Company. ARTICLE VII Assignment of Membership and Common Interests Section 7.1 Assignment of Membership and Common Interests. Membership and Common Interests in the Company shall be assignable and transferable. Any transferee shall not be admitted as a member unless and until the transferee has executed a counterpart of this Agreement. Section 7.2 Certificates. Common Interests in the Company may, but need not be, evidenced by a certificate of limited liability company interest issued by the Company. ARTICLE VIII Dissolution Section 8.1 Duration and Dissolution. The duration of the Company shall be perpetual. Section 8.2 Winding Up. Subject to the provisions of the Act, the Member or, if additional member(s) are admitted, the member(s) (acting by written consent of all member(s)) shall have the right to wind up the Company's affairs in accordance with Section 18-803 of the Act (and shall promptly do so upon dissolution of the Company in accordance with Section 8.1) and shall also have the right to act as or appoint a liquidating trustee in connection therewith. Section 8.3 Distribution of Assets. Upon the winding up of the Company, the assets shall be distributed in the manner provided in Section 18-804 of the Act. ARTICLE IX Tax Characterization; Reports Section 9.1 Tax Treatment. The Company shall timely make all necessary elections and filings for federal, state, and local tax purposes such that it will not be treated as a separate entity, but, instead, will be disregarded, for federal, state, and local tax purposes. Section 9.2 Form K-1. After the end of each Fiscal Year for which the Company shall have more than one member, the member(s) shall cause to be prepared and transmitted, as promptly as possible, and in any event within 90 days of the close of such Fiscal Year, a federal income tax Form K-1 and any required similar state income tax form for each member. Section 9.3 Company Tax Returns. The Member, or if additional member(s) are admitted, the member(s) shall cause to be prepared and timely filed all tax returns required to be filed for the Company. The Member or the member(s) (as the case may be) may, in their sole discretion, make or refrain from making any federal, state or local income or other tax elections for the Company that it deems necessary or advisable; provided that if there is more than one member, the prior written consent of all the member(s) shall be required in order for the Company to make an election pursuant to Section 754 of the Internal Revenue Code of 1986, as amended (the "Code"). ARTICLE X Exculpation and Indemnification Section 10.1 Exculpation. Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, any member, or any officers, directors, stockholders, partners, employees, representatives or agents of any of the foregoing, nor any officer, employee, representative, Manager or agent of the Company or any of its affiliates (individually, a "Covered Person" and collectively, the "Covered Persons") shall be liable to the Company or any other person for any act or omission (in relation to the Company, this Agreement, any related document or any transaction or investment contemplated hereby or thereby) taken or omitted in good faith by a Covered Person and in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company and is within the scope of authority granted to such Covered Person by the Agreement, provided that such act or omission does not constitute fraud, willful misconduct, bad faith, or gross negligence. Section 10.2 Indemnification. To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 10.2 with respect to any claim, issue or matter in which it has engaged in fraud, willful misconduct, bad faith or gross negligence. ARTICLE XI Miscellaneous Section 11.1 Amendment to this Agreement. Except as otherwise provided in this Agreement, this Agreement may be amended by, and only by, a written instrument executed by the Member or, if additional member(s) are admitted, unanimous consent of the member(s). Section 11.2 Successors; Counterparts. Subject to Article VIII, this Agreement (a) shall be binding as to the executors, administrators, estates, heirs and legal successors, or nominees or representatives, of the Member or, if additional member(s) are admitted, the member(s) and (b) may be executed in several counterparts with the same effect as if the parties executing the several counterparts had all executed one counterpart. Section 11.3 Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflict of laws thereof. In particular, this Agreement shall be construed to the maximum extent possible to comply with all the terms and conditions of the Act. If, nevertheless, it shall be determined by a court of competent jurisdiction that any provisions or wording of this Agreement shall be invalid or unenforceable under the Act or other applicable law, such invalidity or unenforceability shall not validate the entire Agreement and this Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the requirements of applicable law, and, in the event such term or provisions cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable terms or provisions. If it shall be determined by a court of competent jurisdiction that any provisions relating to the distributions and allocations of the Company or to any expenses payable by the Company is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law. Section 11.4 Filings. Following the execution and delivery of this Agreement, the Member shall promptly prepare any documents required to be filed and recorded under the Act, and the Member shall promptly cause each such document to be filed and recorded in accordance with the Act and, to the extent required by local law, to be filed and recorded or notice thereof to be published in the appropriate place in each jurisdiction in which the Company may hereafter establish a place of business. The Member shall also promptly cause to be filed, recorded and published such statements of fictitious business name and any other notices, certificates, statements or other instruments required by any provision of any applicable law of the United States or any state or other jurisdiction which governs the conduct of its business from time to time. Section 11.5 Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope or intent of this Agreement or any provision hereof. Section 11.6 Additional Documents. Each member agrees to perform all further acts and execute, acknowledge and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement. Section 11.7 Notices. All notices, requests and other communications to any member shall be in writing (including telecopier or similar writing) and shall be given to such member (and any other person designated by such member) at its address or telecopier number set forth in a schedule filed with the records of the Company or such other address or telecopier number as such member may hereafter specify for the purpose by notice. Each such notice, request or other communication shall be effective (a) if given by telecopier, when transmitted to the number specified pursuant to this Section and the appropriate confirmation is received, (b) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, or (c) if given by any other means, when delivered at the address specified pursuant to this Section. Section 11.8 Books and Records; Accounting. The Member or, if additional member(s) are admitted, the member(s) shall keep or cause to be kept at the address of the Company (or at such other place as the member(s) shall determine in their discretion) true and full books and records regarding the status of the business and financial condition of the Company. IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the date first above written. CINERGY CAPITAL & TRADING, INC. By: /s/ M. W. Ludlow Madeleine W. Ludlow President SCHEDULE 1 OWNERSHIP INTERSHIP Member % Ownership Cinergy Capital & Trading, Inc. 100% EX-3.(I) 9 CINERGY-CENTRUS, INC. CERT. OF INCORP. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF Cinergy-Centrus, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy-Centrus, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Douglas C. Taylor, 139 East Fourth Street, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. As Adopted: April 23, 1998 As Amended: June 26, 1998 EX-3.(II) 10 CINERGY-CENTRUS, INC. BY-LAWS BY-LAWS OF CINERGY-IDEON , INC. Adopted: April 23, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 4 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 4 Section 2.2. Notice of Annual Meeting. 4 Section 2.3. Special Meetings. 4 Section 2.4. Notice of Special Meeting. 4 Section 2.5. Waiver of Notice. 4 Section 2.6. Quorum. 4 Section 2.7. Voting. 5 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 5 ARTICLE III Directors Section 3.1. Duties and Powers. 5 Section 3.2. Number and Election of Directors. 6 Section 3.3. Vacancies. 6 Section 3.4. Meetings. 6 Section 3.5. Quorum. 6 Section 3.6. Actions of Board. 6 Section 3.7. Meetings by Means of Conference TelePhone.6 Section 3.8. Committees. 7 Section 3.9. CompensationSection 3.8 Compensation. 7 Section 3.10. Contracts and Transactions Involving Directors. 7 ARTICLE IV Officers Section 4.1. Officers. 8 Section 4.2. Appointment, Terms, and Vacancies. 8 Section 4.3. Chairman of the Board. 8 Section 4.4. Chief Executive OfficerSection 5.4 Chief Executive Officer. 8 Section 4.5. President. 8 Section 4.6. Vice Presidents. 8 Section 4.7(a). Secretary. 8 Section 4.7(b). Assistant Secretaries. 9 Section 4.8. Treasurer. 9 Section 4.9. Comptroller. 9 Section 4.10. Other Officers. 10 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 10 Section 5.2. Signatures. 10 Section 5.3. Lost Certificates. 10 Section 5.4. Transfers. 10 Section 5.5. Record Date. 10 Section 5.6. Beneficial Ownership Rights. 11 ARTICLE VI Notices Section 6.1. Notices. 11 Section 6.2. Waivers of Notice. 11 ARTICLE VII General Provisions Section 7.1. Dividends. 11 Section 7.2. Disbursements. 11 Section 7.3. Voting Securities Owned by the Corporation. 11 Section 7.4. Fiscal Year. 12 Section 7.5. Corporate Seal. 12 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 12 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 12 Section 8.3. Authorization of Indemnification. 13 Section 8.4. Good Faith Defined. 13 Section 8.5. Indemnification by a Court. 14 Section 8.6. Expenses Payable in Advance. 14 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 14 Section 8.8. Insurance. 14 Section 8.9. Certain Definitions. 14 Section 8.10. Survival of Indemnification and Advancement of Expenses. 15 Section 8.11. Limitation on Indemnification. 15 Section 8.12. Indemnification of Employees and Agents. 15 ARTICLE IX Amendments Section 9.1. Amendments. 15 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 16 By-Laws Of Cinergy-Ideon, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. The principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202 (to the extent not otherwise provided in the Corporation's Certificate of Incorporation). The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the shareholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. CompensationSection 3.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 11 CINERGY-CENTRUS CERTIFICATE OF INCORPORATION CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF Cinergy-Centrus, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy-Centrus, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Douglas C. Taylor, 139 East Fourth Street, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. As Adopted: April 23, 1998 As Amended: June 26, 1998 EX-3.(II) 12 CINERGY-CENTRUS COMMUNICATIONS, INC. BY-LAWS BY-LAWS OF CINERGY-CENTRUS COMMUNICATIONS, INC. Adopted: July 17, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 4 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 4 Section 2.2. Notice of Annual Meeting. 4 Section 2.3. Special Meetings. 4 Section 2.4. Notice of Special Meeting. 4 Section 2.5. Waiver of Notice. 4 Section 2.6. Quorum. 4 Section 2.7. Voting. 5 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 5 ARTICLE III Directors Section 3.1. Duties and Powers. 5 Section 3.2. Number and Election of Directors. 6 Section 3.3. Vacancies. 6 Section 3.4. Meetings. 6 Section 3.5. Quorum. 6 Section 3.6. Actions of Board. 6 Section 3.7. Meetings by Means of Conference Telephone.6 Section 3.8. Committees. 7 Section 3.9. Compensation3.8 Compensation. 7 Section 3.10. Contracts and Transactions Involving Directors. 7 ARTICLE IV Officers Section 4.1. Officers. 8 Section 4.2. Appointment, Terms, and Vacancies. 8 Section 4.3. Chairman of the Board. 8 Section 4.4. Chief Executive OfficerSection 5.4 Chief Executive OfficerSection 5.4 Chief Executive Officer. 8 Section 4.5. President. 8 Section 4.6. Vice Presidents. 8 Section 4.7(a). Secretary. 8 Section 4.7(b). Assistant Secretaries. 9 Section 4.8. Treasurer. 9 Section 4.9. Comptroller. 9 Section 4.10. Other Officers. 10 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 10 Section 5.2. Signatures. 10 Section 5.3. Lost Certificates. 10 Section 5.4. Transfers. 10 Section 5.5. Record Date. 10 Section 5.6. Beneficial Ownership Rights. 11 ARTICLE VI Notices Section 6.1. Notices. 11 Section 6.2. Waivers of Notice. 11 ARTICLE VII General Provisions Section 7.1. Dividends. 11 Section 7.2. Disbursements. 11 Section 7.3. Voting Securities Owned by the Corporation. 11 Section 7.4. Fiscal Year. 12 Section 7.5. Corporate Seal. 12 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 12 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 12 Section 8.3. Authorization of Indemnification. 13 Section 8.4. Good Faith Defined. 13 Section 8.5. Indemnification by a Court. 14 Section 8.6. Expenses Payable in Advance. 14 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 14 Section 8.8. Insurance. 14 Section 8.9. Certain Definitions. 14 Section 8.10. Survival of Indemnification and Advancement of Expenses. 15 Section 8.11. Limitation on Indemnification. 15 Section 8.12. Indemnification of Employees and Agents. 15 ARTICLE IX Amendments Section 9.1. Amendments. 15 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 16 By-Laws Of Cinergy-Centrus Communications, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. The principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202 (to the extent not otherwise provided in the Corporation's Certificate of Incorporation). The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the shareholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation3.8 Compensation.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 13 CINERGY BUSINESS SOLUTIONS, INC. CERT. OF INCORP. CERTIFICATE OF INCORPORATION OF Cinergy Business Solutions, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy Business Solutions, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Rosemary E. Grieme, 221 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this ____ day of April, 1998. -------------------------------- Rosemary E. Grieme Sole Incorporator EX-3.(II) 14 CINERGY BUSINESS SOLUTIONS, INC. BY-LAWS By-Laws Of CINERGY BUSINESS SOLUTIONS, INC. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. The principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. BY-LAWS of CINERGY BUSINESS SOLUTIONS, INC. As Adopted April 10, 1998 EX-3.(II) 15 CINERGY CUSTOEMR CARE, INC. BY-LAWS BY-LAWS OF CINERGY CUSTOMER CARE, INC. Adopted: August 21, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 4 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 4 Section 2.2. Notice of Annual Meeting. 4 Section 2.3. Special Meetings. 4 Section 2.4. Notice of Special Meeting. 4 Section 2.5. Waiver of Notice. 4 Section 2.6. Quorum. 4 Section 2.7. Voting. 5 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 5 ARTICLE III Directors Section 3.1 Duties and Powers. 5 Section 3.2 Number and Election of Directors. 6 Section 3.3 Vacancies. 6 Section 3.4 Meetings. 6 Section 3.5 Quorum. 6 Section 3.6 Actions of Board. 6 Section 3.7 Meetings by Means of Conference Telephone. 6 Section 3.8 Committees. 7 Section 3.9 Compensation3.8 Compensation.8 Compensation. 7 Section 3.10 Contracts and Transactions Involving Directors. 7 ARTICLE IV Officers Section 4.1 Officers. 8 Section 4.2 Appointment, Terms, and Vacancies. 8 Section 4.3 Chairman of the Board. 8 Section 4.4 Chief Executive OfficerSection 5.4 Chief Executive Officer Section 8 Section 4.5 President. 8 Section 4.6 Vice Presidents. 8 Section 4.7(a) Secretary. 8 Section 4.7(b) Assistant Secretaries. 9 Section 4.8 Treasurer. 9 Section 4.9 Comptroller. 9 Section 4.10 Other Officers. 10 ARTICLE V Capital Stock Section 5.1 Form and Execution of Certificates. 10 Section 5.2 Signatures. 10 Section 5.3 Lost Certificates. 10 Section 5.4 Transfers. 10 Section 5.5 Record Date. 10 Section 5.6 Beneficial Ownership Rights. 11 ARTICLE VI Notices Section 6.1 Notices. 11 Section 6.2 Waivers of Notice. 11 ARTICLE VII General Provisions Section 7.1 Dividends. 11 Section 7.2 Disbursements. 11 Section 7.3 Voting Securities Owned by the Corporation. 11 Section 7.4 Fiscal Year. 12 Section 7.5 Corporate Seal. 12 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 12 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 12 Section 8.3. Authorization of Indemnification. 13 Section 8.4. Good Faith Defined. 13 Section 8.5. Indemnification by a Court. 14 Section 8.6. Expenses Payable in Advance. 14 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 14 Section 8.8. Insurance. 14 Section 8.9. Certain Definitions. 14 Section 8.10. Survival of Indemnification and Advancement of Expenses. 15 Section 8.11. Limitation on Indemnification. 15 Section 8.12. Indemnification of Employees and Agents. 15 ARTICLE IX Amendments Section 9.1. Amendments. 15 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 16 By-Laws Of Cinergy Customer Care, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. The principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202 (to the extent not otherwise provided in the Corporation's Certificate of Incorporation). The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the shareholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation3.8 Compensation.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 16 CINERGY SOLUTIONS OF TUSCOLA INC CERT OF INCORP CERTIFICATE OF INCORPORATION OF Cinergy Solutions of Tuscola, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is: Cinergy Solutions of Tuscola, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Rosemary E. Grieme, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this 13th day of October, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Incorporator Document #: 36835 EX-3.(II) 17 CINERGY SOLUTIONS OF TUSCOLA, INC. BY-LAWS BY-LAWS OF Cinergy Solutions of Tuscola, Inc. October 13, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 1 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 1 Section 2.3. Special Meetings. 1 Section 2.4. Notice of Special Meeting. 1 Section 2.5. Waiver of Notice. 2 Section 2.6. Quorum. 2 Section 2.7. Voting. 2 Section 2.8. Written Consent of Stockholders in Lieu of Meeting.2 ARTICLE III Directors Section 3.1. Duties and Powers. 3 Section 3.2. Number and Election of Directors. 3 Section 3.3. Vacancies. 3 Section 3.4. Meetings. 3 Section 3.5. Quorum. 3 Section 3.6. Actions of Board. 4 Section 3.7. Meetings by Means of Conference Telephone. 4 Section 3.8. Committees. 4 Section 3.9. Compensation 4 Section 3.10. Contracts and Transactions Involving Directors 4 ARTICLE IV Officers Section 4.1. Officers. 5 Section 4.2. Appointment, Terms, and Vacancies. 5 Section 4.3. Chairman of the Board. 5 Section 4.4. Chief Executive Officer 5 Section 4.5. President. 6 Section 4.6. Vice Presidents. 6 Section 4.7(a). Secretary. 6 Section 4.7(b). Assistant Secretaries. 6 Section 4.8. Treasurer. 7 Section 4.9. Comptroller. 7 Section 4.10. Other Officers. 7 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 7 Section 5.2. Signatures. 8 Section 5.3. Lost Certificates. 8 Section 5.4. Transfers. 8 Section 5.5. Record Date. 8 Section 5.6. Beneficial Ownership Rights. 8 ARTICLE VI Notices Section 6.1. Notices. 9 Section 6.2. Waivers of Notice. 9 ARTICLE VII General Provisions Section 7.1. Dividends. 9 Section 7.2. Disbursements. 9 Section 7.3. Voting Securities Owned by the Corporation. 9 Section 7.4. Fiscal Year. 10 Section 7.5. Corporate Seal. 10 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 10 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 10 Section 8.3. Authorization of Indemnification. 11 Section 8.4. Good Faith Defined. 11 Section 8.5. Indemnification by a Court. 12 Section 8.6. Expenses Payable in Advance. 12 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 12 Section 8.8. Insurance. 12 Section 8.9. Certain Definitions. 13 Section 8.10. Survival of Indemnification and Advancement of Expenses. 13 Section 8.11. Limitation on Indemnification. 13 Section 8.12. Indemnification of Employees and Agents. 13 ARTICLE IX Amendments Section 9.1. Amendments. 14 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 14 By-Laws Of Cinergy Solutions of Tuscola, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. Doc. # 40848 EX-99 18 TRIGEN-CINERGY SOL BOCA RATON LLC CERT OF FORM CERTIFICATE OF FORMATION OF Trigen-Cinergy Solutions of Boca Raton, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: Trigen-Cinergy Solutions of Boca Raton, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Subject to the LLC Agreement, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 4th day of September, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Organizer #34896 EX-99 19 TRIGEN-CINERGY SOL OF ORLANDO LLC CERT OF FORM CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF ORLANDO LLC The undersigned, being a natural person of age eighteen years or more, acting as organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: Trigen-Cinergy Solutions of Orlando LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of the Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Except as restricted by the Certificate of Formation, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial LLC Agreement of the Company shall be adopted by its members. The LLC Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. ARTICLE VI AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 12th day of June, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Authorized Person #: 30179 EX-99 20 TRIGEN-CINERGY SOL OF TUSCOLA LLC CERT OF FORM CERTIFICATE OF FORMATION OF Trigen-Cinergy Solutions of Tuscola, LLC The undersigned, being a natural person of age eighteen years or more, acting as the Sole Organizer of a limited liability company under the Delaware Limited Liability Company Act (as the same may be amended from time to time, the "Act"), adopts, pursuant to Section 18-201 of the Act, the following Certificate of Formation for such limited liability company (the "Company"): ARTICLE I NAME The name of the Company shall be: Trigen-Cinergy Solutions of Tuscola, LLC ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. Either the registered office or the registered agent may be changed in the manner provided by law. ARTICLE III PERIOD OF DURATION The Company shall exist until dissolved according to law or by the terms of its Limited Liability Company Agreement (the "LLC Agreement"). ARTICLE IV POWERS Subject to the LLC Agreement, the Company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Act. ARTICLE V AMENDMENTS The Company reserves the right to amend this Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 21st day of August, 1998. /s/ Rosemary E. Grieme Rosemary E. Grieme Sole Organizer #34021 EX-99 21 CINERGY SUPPLY NETWORK, INC. CERT. OF INCORP. CERTIFICATE OF INCORPORATION OF Cinergy Supply Network, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy Supply Network, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Douglas C. Taylor, 139 East Fourth Street, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this 14th day of January, 1998. /s/ Douglas C. Taylor Douglas C. Taylor Sole Incorporator EX-3.(II) 22 CINERGY SUPPLY NETWORK, INC. BY-LAWS BY-LAWS OF CINERGY SUPPLY NETWORK , INC. Adopted: January 14, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 4 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 4 Section 2.2. Notice of Annual Meeting. 4 Section 2.3. Special Meetings. 4 Section 2.4. Notice of Special Meeting. 4 Section 2.5. Waiver of Notice. 4 Section 2.6. Quorum. 4 Section 2.7. Voting. 5 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 5 ARTICLE III Directors Section 3.1. Duties and Powers. 5 Section 3.2. Number and Election of Directors. 6 Section 3.3. Vacancies. 6 Section 3.4. Meetings. 6 Section 3.5. Quorum. 6 Section 3.6. Actions of Board. 6 Section 3.7. Meetings by Means of Conference Telephone.6 Section 3.8. Committees. 7 Section 3.9. CompensationSection 3.8 Compensation. 7 Section 3.10. Contracts and Transactions Involving Directors. 7 ARTICLE IV Officers Section 4.1. Officers. 8 Section 4.2. Appointment, Terms, and Vacancies. 8 Section 4.3. Chairman of the Board. 8 Section 4.4. Chief Executive OfficerSection 5.4 Chief Executive Officer. 8 Section 4.5. President. 8 Section 4.6. Vice Presidents. 8 Section 4.7(a). Secretary. 8 Section 4.7(b). Assistant Secretaries. 9 Section 4.8. Treasurer. 9 Section 4.9. Comptroller. 9 Section 4.10. Other Officers. 10 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 10 Section 5.2. Signatures. 10 Section 5.3. Lost Certificates. 10 Section 5.4. Transfers. 10 Section 5.5. Record Date. 10 Section 5.6. Beneficial Ownership Rights. 11 ARTICLE VI Notices Section 6.1. Notices. 11 Section 6.2. Waivers of Notice. 11 ARTICLE VII General Provisions Section 7.1. Dividends. 11 Section 7.2. Disbursements. 11 Section 7.3. Voting Securities Owned by the Corporation. 11 Section 7.4. Fiscal Year. 12 Section 7.5. Corporate Seal. 12 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 12 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 12 Section 8.3. Authorization of Indemnification. 13 Section 8.4. Good Faith Defined. 13 Section 8.5. Indemnification by a Court. 14 Section 8.6. Expenses Payable in Advance. 14 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 14 Section 8.8. Insurance. 14 Section 8.9. Certain Definitions. 14 Section 8.10. Survival of Indemnification and Advancement of Expenses. 15 Section 8.11. Limitation on Indemnification. 15 Section 8.12. Indemnification of Employees and Agents. 15 ARTICLE IX Amendments Section 9.1. Amendments. 15 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 16 By-Laws Of Cinergy Supply Network, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. The principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202 (to the extent not otherwise provided in the Corporation's Certificate of Incorporation). The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the shareholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. CompensationSection 3.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 23 RELIANT SERVICES, LLC ARTICLES OF ORGANIZATION ARTICLES OF ORGANIZATION OF Reliant Services, LLC The undersigned, as Organizer of a limited liability company, on behalf of its members, under the Indiana Business Flexibility Act, as amended (the "Act"), hereby adopts these Articles of Organization for Reliant Services, LLC (the "Company"): I. Name The name of the Company is Reliant Services, LLC. II. Registered Office and Registered Agent The street address of the registered office of the Company in the State of Indiana is One North Capitol, Indianapolis, Indiana 46204. The name of the initial registered agent of the Company at the registered office is CT Corporation System. III. Duration The duration of the Company is perpetual until the dissolution of the Company in accordance with the Company's Fundamental Operating Agreement (the "Operating Agreement") and the Act. IV. Member Management The Company is to be managed by its members. V. Restriction on Transfer No member of the Company may transfer its interest in the Company except in accordance with the Operating Agreement and the Act. VI. Initial Members The initial members of the Company are IGC Energy, Inc. and Cinergy Supply Network, Inc. IN WITNESS WHEREOF, these Articles of Organization have been executed by the undersigned as Organizer of the Company, this 25th day of June, 1998. /s/ Robert E. Heidorn Robert E. Heidorn Organizer 40898 EX-99 24 CINERGY GLOBAL RESOURCES CERT OF INCORPORATION CERTIFICATE OF INCORPORATION OF Cinergy Global Resources, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy Global Resources, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Julia S. Janson, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this ____ day of May, 1998. ------------------------------- Julia S. Janson Sole Incorporator EX-3.(II) 25 CINERGY GLOBAL RESOURCES, INC. BY-LAWS By-Laws Of CINERGY GLOBAL RESOURCES, INC. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By-Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 26 CINERGY GLOBAL ELY INC CERT OF INCORPORATION CERTIFICATE OF INCORPORATION OF Cinergy Global Ely, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is: Cinergy Global Ely, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Julia S. Janson, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this 28th day of August, 1998. /s/ Julia S. Janson Julia S. Janson Sole Incorporator #34163 EX-3.(II) 27 CINERGY GLOBAL ELY, INC. BY-LAWS BY-LAWS OF CINERGY GLOBAL ELY, INC. AUGUST 28, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1 Offices. 1 ARTICLE II Stockholders' Meetings Section 2.1 Annual Meeting. 1 Section 2.2 Notice of Annual Meeting. 1 Section 2.3 Special Meetings. 1 Section 2.4 Notice of Special Meeting. 1 Section 2.5 Waiver of Notice. 2 Section 2.6 Quorum. 2 Section 2.7 Voting. 2 Section 2.8 Written Consent of Stockholders in Lieu of Meeting. 2 ARTICLE III Directors Section 3.1 Duties and Powers. 3 Section 3.2 Number and Election of Directors. 3 Section 3.3 Vacancies. 3 Section 3.4 Meetings. 3 Section 3.5 Quorum. 3 Section 3.6 Actions of Board. 4 Section 3.7 Meetings by Means of Conference Telephone. 4 Section 3.8 Committees. 4 Section 3.9 Compensation 4 Section 3.10 Contracts and Transactions Involving Directors 4 ARTICLE IV Officers Section 4.1 Officers. 5 Section 4.2 Appointment, Terms, and Vacancies. 5 Section 4.3 Chairman of the Board. 5 Section 4.4 Chief Executive Officer 5 Section 4.5 President. 6 Section 4.6 Vice Presidents. 6 Section 4.7(a) Secretary. 6 Section 4.7(b) Assistant Secretaries. 6 Section 4.8 Treasurer. 7 Section 4.9 Comptroller. 7 Section 4.10 Other Officers. 7 ARTICLE V Capital Stock Section 5.1 Form and Execution of Certificates. 7 Section 5.2 Signatures. 8 Section 5.3 Lost Certificates. 8 Section 5.4 Transfers. 8 Section 5.5 Record Date. 8 Section 5.6 Beneficial Ownership Rights. 8 ARTICLE VI Notices Section 6.1 Notices. 9 Section 6.2 Waivers of Notice. 9 ARTICLE VII General Provisions Section 7.1 Dividends. 9 Section 7.2 Disbursements. 9 Section 7.3 Voting Securities Owned by the Corporation. 9 Section 7.4 Fiscal Year. 10 Section 7.5 Corporate Seal. 10 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 10 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 10 Section 8.3. Authorization of Indemnification. 11 Section 8.4. Good Faith Defined. 11 Section 8.5. Indemnification by a Court. 12 Section 8.6. Expenses Payable in Advance. 12 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses12 Section 8.8. Insurance. 12 Section 8.9. Certain Definitions. 13 Section 8.10. Survival of Indemnification and Advancement of Expenses. 13 Section 8.11. Limitation on Indemnification. 13 Section 8.12. Indemnification of Employees and Agents. 13 ARTICLE IX Amendments Section 9.1 Amendments. 14 ARTICLE X Emergency By-Laws Section 10.1 Emergency By-Laws. 14 By-Laws Of Cinergy Global Ely, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation.8 Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By-Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. 34183 EX-99 28 EPR ELY POWER LIMITED MEMO. & ART. OF ASSOC. THE COMPANIES ACT 1985 COMPANY LIMITED BY SHARES MEMORANDUM AND ARTICLES OF ASSOCIATION OF EPR ELY POWER LIMITED 1. The name of the Company is EPR ELY POWER LIMITED. 2. The registered office of the Company will be situate in England and Wales. 3. The objects for which the Company is established are:- (A) To carry on the business of a holding company in all its branches and to coordinate the policy and administration of any subsidiary company; to carry on, participate in, undertake and perform all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents and contractors, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, marketing and business consultants, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all or any kinds of commercial, industrial, trading and financial operations and enterprises; to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. (B) To carry on any other business or trade which in the opinion of the Board of Directors may be conveniently or advantageously carried on in connection with or as ancillary to any of the above businesses or be calculated directly or indirectly to enhance the value of or render profitable any of the property of the Company or to further any of its objects. (C) To purchase, take options over, take on lease or in exchange, hire or otherwise acquire and hold for any estate or interest whatsoever any movable or immovable property, whether tangible or intangible and wheresoever situate, which the Board of Directors may think necessary or convenient for the purposes of the business of the Company, and to improve, manage, construct, repair, develop, exchange, let on lease or otherwise deal with all or any part of the property and rights of the Company. (D) To build, construct, maintain, develop, alter, enlarge, improve, pull down, remove or replace any buildings, works, roads, railways, tramways, sidings, bridges, reservoirs, shops, stores, factories, plant and machinery necessary or convenient for the business of the Company and to join with any person, firm or company in doing any of the things aforesaid. (E) To borrow or raise or secure the repayment of moneys raised or borrowed for the purposes of or in connection with the business of the Company in any manner and in particular to issue and deposit any mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's undertaking, property or assets (whether present or future) including its uncalled capital (if any) and to issue at par or at a premium or discount, and for such consideration and with and subject to such rights, powers, privileges and conditions as may be thought fit, debentures or debenture stock, either permanent or redeemable or repayable, and collaterally or further to secure any securities of the Company by a trust deed or other assurance. (F) To issue and deposit any securities which the Company has power to issue by way of mortgage to secure any sum less than the nominal amount of such securities and also by way of security or guarantee for the performance by the Company or any other person firm or company having dealings with the Company or in whose business or undertakings the Company is interested whether directly or indirectly of any contract or liability undertaken thereby or which may become binding thereon as the case may be (G) To lend and advance money or give credit on such terms as may seem expedient and with or without security to customers and others, to enter into guarantees, contracts of indemnity and suretyships of all kinds, to receive money on deposit or loan upon any terms, to secure or guarantee the payment of any sums of money or the performance of any obligation by any company, firm or person including any holding company, subsidiary or fellow subsidiary company in any manner, and generally to act as bankers for customers and others. (H) To receive money on deposit or loan upon such terms as the Company may approve, and to give guarantees or become security for the obligations and contracts of any person, firm or company including the obligations and contracts of customers. (I) To invest and deal with the moneys of the Company not immediately required for the purpose of its business in or upon such investments and securities and in such manner as may from time to time be considered expedient. (J) To acquire or undertake the whole or any part of the business, goodwill, property, assets and liabilities of any person, firm, or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on or which can be carried on in conjunction therewith or which are capable of being conducted so as directly or indirectly to benefit the Company. (K) To apply for and take out, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes or information, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under or grant licences or privileges in respect of the same whether exclusive or non-exclusive, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. (L) To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, scrip, warrants, debentures and other negotiable or transferable instruments. (M) To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company's constitution, or for any other purpose which may seem calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company's interests. (N) To enter any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which the Company may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges, and concessions. (O) To enter into any partnerships or joint-purchase arrangement or arrangement for sharing profits, union of interests or co-operation with any company, firm or person carrying on or proposing to carry on any business which this Company is authorised to carry on or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company, and to acquire and hold, sell, deal with or dispose of shares, stock or securities of any such company, firm or person and to guarantee the contracts or liabilities of, or the payment of the dividends, interest or capital of any shares, stock or securities of and to subsidise or otherwise assist any such. (P) To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem desirable in respect of any business or operations of or generally in relation to any such company or companies. (Q) To subscribe for, take, purchase or otherwise acquire and hold shares stocks, debentures, debenture stocks, bonds or other interests in or securities of any other company having objects altogether or in part similar to those of the Company or carrying on any business capable of being carried on so as directly or indirectly to benefit the Company or enhance the value of any of its property and to co- ordinate, finance and manage the business and operations of any company in which the Company holds any such interest. (R) To establish finance or promote or concur in establishing financing or promoting any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may directly or indirectly appear likely to assist or benefit the Company or to enhance the value of any property or business of the Company and to issue, place, underwrite or guarantee the subscription of, or concur or assist in the issuing or placing, underwriting or guaranteeing the subscription of shares, debentures, debenture stock, bonds, stocks and securities of any company, whether limited or unlimited or incorporated by Act of Parliament or otherwise, at such times and upon such terms and conditions as to remuneration and otherwise as may be agreed upon and to hold or dispose of such shares or securities or guarantee the payment of the dividends, interest or capital of any such shares or securities issued by or any other obligations of any such company. (S) To sell, exchange, lease, licence, turn to account or otherwise dispose of the whole or any part of the business property or undertaking of the Company, either together or in portions and to accept payment therefor either in cash, by instalments or otherwise, or in fully or partly paid-up shares of any company or corporation formed or to be formed for purchasing the same (with or without deferred or preferred or special rights or restrictions in respect of dividend, repayment of capital, voting or otherwise) or in debentures or mortgage debentures or debenture stock, mortgages or other securities of any such company or corporation, or partly in one mode and partly in another, and generally on such terms as the Company may determine, and to hold, dispose of or otherwise deal with any shares, stock or securities so acquired. (T) To the extent permitted by law to give financial assistance for the purpose of the acquisition of shares of the Company or of any company of which the Company is a subsidiary and for the purpose of reducing or discharging a liability incurred for the purpose of such an acquisition and to give such assistance by means of a gift, loan or guarantee, indemnity, the provision of security or otherwise. (U) To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise as may be thought expedient. (V) To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or of any company formed or promoted by the Company or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling or guaranteeing the subscription of any shares or other securities of the Company. (W) To support or subscribe to any charitable, benevolent or useful object of a public character and to establish, support and subscribe to any association, institution, society, fund or club which may be for the benefit of the Company or its Directors, ex-Directors, employees, or ex-employees or may be connected with any town or place where the Company carries on business; to give or award pensions, annuities, gratuities, bonuses and superannuation or other allowances or benefits or charitable aid and generally to provide advantages, facilities and services for any persons who are or have been Directors of, or who are or have been employed by, or who are serving or have served the Company, or of any company which is a subsidiary of the Company or the holding company of the Company or a fellow subsidiary of the Company or the predecessors in business of the Company or of any such subsidiary, holding or fellow subsidiary company and to the wives, widows, children and other relatives and dependants of such persons; to make payments towards insurance for the benefit of such persons as aforesaid; and to set up, establish support and maintain superannuation and other funds or schemes (whether contributory or non-contributory) for the benefit of any of such persons and of their wives, widows, children and other relatives and dependants; and to set up, establish, support and maintain profit sharing, share purchase and share option schemes for the benefit of any of the employees or Directors of the Company or of any such subsidiary, holding or fellow subsidiary company and to lend money to any such employees or to trustees on their behalf to enable any such schemes to be established or maintained. (X) To distribute among the members in specie any property of the Company, or any proceeds of sale or disposal of any property of the Company, and for such purpose to distinguish and separate capital profits, but so that no distribution amounting to a reduction of capital be made except with the sanction (if any) for the time being required by law. (Y) To procure the Company to be registered or recognised in any part of the world and to do all or any of the things or matters aforesaid in any part of the world and either as principals, agents, trustees, contractors, sub-contractors or otherwise, and by or through agents, brokers, sub-contractors, trustees or otherwise and either alone or in conjunction with others. (Z) To do all such things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. The objects set forth in each sub-clause of this Clause shall not be restrictively construed but the widest interpretations shall be given thereto, and they shall not, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause or from the terms of any other sub-clause or from the name of the Company. None of such sub-clauses or the object or objects therein specified or the powers thereby conferred shall be deemed subsidiary or ancillary to the objects or powers mentioned in any other sub-clause, but the Company shall have as full a power to exercise all or any of the objects conferred by and provided in each of the said sub-clauses as if each sub-clause contained the objects of a separate company. The word "company" in this Clause, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere. 4. The liability of the members is limited. 5. The share capital of the Company is(pound)7,714,286 divided into 7,714,286 shares of(pound)1 each. We, the several persons whose names and addresses are subscribed, are desirous of being formed into a Company in pursuance of this Memorandum of Association, and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. - --------------------------------------------------------------------------- Names, addresses and descriptions Number of Shares agreed Subscribers to be taken by each Subscriber - --------------------------------------------------------------------------- Rachelle Sellek One Fitzalan House Fitzalan Road Cardiff CF2 1XZ Solicitor Yu-Ho Cheung One Fitzalan House Fitzalan Road Cardiff CF2 1XZ Solicitor Dated the 26th day of June 1998 Witness to the above signatures:- Dawn Gillard Fitzalan House Fitzalan Road Cardiff CF2 1XZ Secretary The Companies Act 1985 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION of EPR ELY POWER LIMITED 1 Preliminary The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded or varied) and these Articles shall be the regulations of the Company. 2 Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" The Companies Act 1985 including any statutory modification or re-enactment thereof for the time being in force "A" preference shares" Together the "A1" preference shares and the "A2" preference shares "A1" preference shares" The "A1" redeemable preference shares of(pound)1.00 each "A2" preference shares" The "A2" redeemable preference shares of(pound)1.00 each "these Articles" These Articles of Association, whether as originally adopted or as from time to time altered by special resolution "B" preference shares" The "B" redeemable preference shares of(pound)1.00 each "clear days" In relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect "the Completion Date" The Completion Date as defined in the Equity Contribution Agreement. "the Credit Agreement" The Credit Agreement as defined in the Equity Contribution Agreement "the directors" The directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company "Equity The equity contribution agreement entered into on the Contribution Agreement" date of adoption of these Articles in relation to shares in the Company "executed" Includes any mode of execution "the holder" In relation to shares means the member whose name is entered in the register of members as the holder of the shares "office" The registered office of the Company "ordinary shares" The ordinary shares of(pound)1.00 each "preference shares" Together the "A1" preference shares, the "A2" preference shares and the "B" preference shares "seal" The common seal of the Company (if any) "secretary" The secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary "share" Includes any interest in a share "the United Kingdom" Great Britain and Northern Ireland. Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. 3 Share capital 3.1 The authorised share capital of the Company at the time of adoption of these Articles is(pound)7,714,286 divided into 714,286 ordinary shares, 1,500,000 "A1" preference shares, 1,500,000 "A2" preference shares and 4,000,000 "B" preference shares. 3.2 Save as may be provided by regulation 110 of Table A and subject to any contrary direction given by the Company in general meeting by special resolution and save as provided in Article 3.3 below all shares which are comprised in the authorised share capital of the Company from time to time which the directors propose to issue shall first be offered, at par or at a premium and upon such other terms and conditions as the directors may determine, to the members who are holders of the same class of shares as those to be issued at the time of the offer in proportion to the number of the existing shares of that class held by them respectively and at the same price. Each such offer shall be made by notice specifying the total number and class of shares being offered to the members holding shares of that class as a whole, the proportionate entitlement of the member to whom the offer is made and the price per share and shall require each member to state in writing within a period (not being less than fourteen days) specified in the notice whether he is willing to take any and, if so, what maximum number of the said shares up to his proportionate entitlement. An offer, if not accepted within the period specified as regards any shares, will be deemed to be declined as regards those shares. After the expiration of such period, those shares so deemed to be declined shall be offered in proportion as aforesaid to the persons holding shares of the same class who have, within the said period, accepted all the shares offered to them; such further offer shall be made in like terms in the same manner and limited by a like period as the original offer. Any shares not accepted pursuant to such offer or further offer as aforesaid or not capable of being offered as aforesaid except by way of fractions shall not be issued. Any shares released from the provisions of this Article by any such special resolution as aforesaid shall be under the control of the directors, who may allot, grant options over or otherwise dispose of the same to such persons, on such terms, and in such manner as they think fit. No share shall be issued at a discount or otherwise in breach of the provisions of these Articles or of the Act. 3.3 The provisions of Article 3.2 shall not apply to the issue and allotment of the ordinary shares and preference shares in the Company expressly provided for in the Equity Contribution Agreement. 3.4 Subject to any special rights conferred upon the holders of any shares or class of shares, any share in the Company may be issued with or have attached thereto such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as the Company may by special resolution determine. 3.5 Subject to the Act, any preference shares may be issued on the terms that they are, or at the option of the Company are to be liable, to be redeemed on such terms and in such manner as the Company may by special resolution determine. 4 Rights of preference shares The rights attaching to the preference shares are as follows:- 4.1 as regards capital:- on a return of capital on liquidation or otherwise the assets of the Company available for distribution among the members shall be applied first in repaying to the holders of the preference shares an amount equal to the par value of such shares but the preference shares shall not entitle the holders thereof to any further or other right of participation in the assets of the Company; 4.2 as regards redemption of the "A" preference shares:- the Company shall (subject to the provisions of the Act) redeem the "A1" preference shares and the "A2" preference shares (which shall rank as one class of shares for the purposes of redemption) at par in six equal half yearly instalments payable in each of the three following years commencing six months after the twelfth anniversary of the Completion Date provided that where there is more than one holder of either class of "A" preference shares the shares of each such class to be redeemed shall be redeemed in proportion to the number of that class of "A" preference shares held by each such holder respectively. 4.3 as regards redemption of the "B" preference shares:- the Company shall (subject to the provisions of the Act) redeem the "B" preference shares at par in six equal annual instalments payable in each of the six years commencing on the seventh anniversary of the Completion Date provided that where there is more than one holder of "B" preference shares the "B" preference shares shall be redeemed in proportion to the number of "B" preference shares held by each such holder respectively. 4.4 any notice of redemption shall specify the class and number of shares to be redeemed, the date fixed for redemption and the place at which the certificates for such shares are to be presented for redemption and upon such date each of the holders of the shares concerned shall be bound to deliver to the Company at such place the certificates for such of the preference shares concerned as are held by him in order that the same may be cancelled. Upon such delivery the Company shall pay to such holder (or, in the case of joint holders, to the holder whose name stands first in the register in respect of such shares) the amount then due to him in respect of such redemption; 4.5 notwithstanding any other provision of these Articles, each of the preference shares not previously redeemed shall be redeemed on the sixteenth anniversary of the Completion Date or as soon thereafter as the Company shall be able to comply with the provisions of the Act as to redemption at par, in accordance with the foregoing provisions of this Article 4 so far as the same are applicable; 4.6 as regards dividends the profits of the Company available for distribution shall be used to pay dividends in the following order of priority:- 4.6.1firstly in paying to the holders of the "B" preference shares a fixed dividend of 10.5% per annum accruing from 1 September 2000. Such dividends shall be paid half-yearly on or as soon as reasonably practicable after each record date being 28 February and 31 August in each year provided that if any such dividends are not paid on the due date interest shall accrue on the amount of the unpaid dividends at the rate of 10.5% per annum accruing on a daily basis from the date that such dividends were due to be paid until the date of payment (whether before or after any judgement); 4.6.2secondly in paying to the holders of the ordinary shares and the "A" preference shares such amount as the directors may determine provided that:- 4.6.2.1 there are no arrears of any dividends previously declared or unpaid interest on any such dividends; 4.6.2.2 the ordinary shares, the "A1" and the "A2" preference shares shall subject to Article 4.6.2.3 rank as one class for the purpose of the declaration and payment of any dividends; 4.6.2.3 the directors shall pay dividends on the "A2" preference shares equal to three sevenths of such dividends as are paid on the "A1" preference shares provided always that the payment of any dividends shall be subject to the restrictions contained in the Credit Agreement, the Inter-creditor Deed (as defined in the Credit Agreement) and the Equity Contribution Agreement; 4.7 as regards voting:- the preference shares shall not carry any right to attend and vote at general meetings of the Company. 5 Modification of class rights Subject to the Act, all or any of the special rights for the time being attached to any class of shares for the time being issued may from time to time (whether or not the Company is being wound up) be altered or abrogated with the consent in writing of the holders of not less than 75% of the issued shares of that class or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of such shares. To any such separate general meeting all the provisions of the regulations of the Company as to general meetings of the Company shall mutatis mutandis apply, but so that the necessary quorum shall be two persons at least holding or representing by proxy not less than 75% of the issued shares of the class. If such separate meeting shall be adjourned owing to the absence of a quorum and if at the adjourned meeting a quorum shall not be present within half-an-hour from the time appointed for such adjourned meeting the holder or holders of shares of the class concerned who are present in person or by proxy shall constitute a quorum. Every holder of shares of the class shall be entitled on a poll to one vote for every such share held by him and any holder of shares of the class present in person or by proxy may demand a poll. 6 Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company whether or not in respect of the shares in question. Regulation 8 of Table A shall be modified accordingly. 7 Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 8 Transfer of shares 8.A.1Where any person is the holder of shares in more than one class and he gives a transfer notice under Article 8.1 in respect of shares in one of such classes (the "prime transfer notice") but not in respect of shares in every other class of which he is a member, he shall be deemed to have also given a transfer notice (a "secondary transfer notice") in respect of shares in each other class of shares of which he is a member specifying in each such secondary transfer notice as the number of shares in such class which he is willing to sell that number of shares which is equal to the total number of shares in that class held by such person at the date of giving the secondary transfer notice reduced by the same proportion (in percentage terms) as the number of shares specified as being available for sale in the prime transfer notice bears to the total number of shares held by such person at such date in the class of shares which are the subject of the prime transfer notice. For the purposes of the following provisions of this Article 8 any reference to a transfer notice shall mean a prime transfer notice and each secondary transfer notice severally. 8.A.2The directors shall not register a transfer pursuant to a prime transfer notice or a secondary transfer notice unless at the time of transfer of such shares such purchasing class member or purchasing member or third party purchaser also acquired shares in each other class of shares in respect of which the proposing transferor shall have given notice to the Company as required by Article 8.A.1, the number of shares to be acquired in respect of each such class being that properly specified in the relevant transfer notice given by the proposing transferor in accordance with Article 8.A.1. 8.A.3The proposing transferor and the purchasing class member or purchasing member or third party purchaser and the Company shall each use their respective best endeavours to ensure that the application of the provisions of Article 8 in respect of the prime transfer notice and each secondary transfer notice shall be effected contemporaneously so far as practicable. If a proposing transferor gives a transfer notice in respect of shares which he holds in each class of shares of which he is a class member simultaneously the transfer notice in respect of the ordinary shares which he holds shall be deemed the prime transfer notice. 8.1 Any person (hereinafter called "the proposing transferor") proposing to transfer any shares of any class shall give notice in writing (hereinafter called "the transfer notice") to the Company that he desires to transfer the same and specifying the price per share at which he is willing to sell them. The transfer notice shall constitute the Company the agent of the proposing transferor for the sale of all (but not some only) of the shares comprised in the transfer notice together with all rights then attached thereto to any member or members holding shares of the same class as those comprised in the transfer notice and willing to purchase the same (hereinafter called "purchasing class members") at the price specified therein or at the fair value determined in accordance with Article 8.3 (whichever shall be the lower). A transfer notice shall not (save as provided in Article 8.3) be revocable except with the sanction of the directors and shall be comprised of one class of share only so that separate transfer notices are required in respect of proposed transfers of separate classes of shares. 8.2 The shares comprised in any transfer notice shall be offered to the members (other than the proposing transferor) holding shares of the same class as those comprised in the transfer notice (hereinafter called "class members") as nearly as may be in proportion to the number of shares of the said class held by them respectively provided that if at the date a transfer notice is given in respect of either class of "A" preference shares there is no member other than the proposing transferor who holds shares of the same class of "A" preference shares comprised in the transfer notice then both classes of "A" preference shares shall rank as one class of shares for the purposes of this Article 8.2. Such offer shall be made by notice in writing (hereinafter called "the offer notice") within seven days after the receipt by the Company of the transfer notice. The offer notice shall:- 8.2.1state the identity of the proposing transferor, the number and class of shares comprised in the transfer notice (in accordance with Article 8.A.1) and the price per share specified in the transfer notice and inform the class members that shares are offered to them in accordance with the provisions of this Article 8.2; 8.2.2contain a statement to the effect that the shares are offered only in the proportion referred to in the opening sentence of this Article 8.2 ; 8.2.3contain a statement of the right of each class member to request a certificate of fair value under Article 8.3, the form of such statement to be as near as circumstances permit to that of the first sentence of that Article; 8.2.4contain a statement to the effect that each of the shares in question is being offered to class members at the lower of the price specified in the transfer notice and (if applicable) its fair value certified in accordance with Article 8.3; 8.2.5state the period in which the offer may be accepted if no such certificate of fair value is requested (not being less than twenty-two days or more than forty-two days after the date of the offer notice); and 8.2.6contain a statement to the effect that, if such a certificate of fair value is requested, the offer will remain open for acceptance until the expiry of a period of fourteen days commencing on the date of the notice of the certified fair value given to class members pursuant to Article 8.3 or until the expiry of the period referred to in Article 8.2.5 whichever is the later. For the purpose of this Article an offer shall be deemed to be accepted on the day on which the acceptance is received by the Company. If any shares shall not be capable of being offered to the class members in proportion to their existing holdings, except by way of fractions the same shall be offered to the class members, or some of them, in such proportions as the directors may think fit. 8.3 Any class member may, not later than eight days after the date of the offer notice, serve on the Company a notice in writing requesting that the auditors for the time being of the Company certify in writing the sum which in their opinion represents the fair value of each share comprised in the transfer notice as at the date of the transfer notice on the basis of a willing seller and a willing buyer. If the auditors decline such appointment at their discretion then a person nominated by the President for the time being of the Institute of Chartered Accountants in the country of the situation of the office on the application of the directors or any class member on behalf of the Company shall be instructed to give such certificate and any following reference in these Articles to the auditors shall include any person so nominated. Forthwith upon receipt of such notice the Company shall instruct the auditors to certify as aforesaid and the costs of producing such certificate shall be apportioned among the proposing transferor and the purchasing class members and borne by any one or more of them as the auditors in their absolute discretion shall decide. Subject as provided below in certifying the fair value as aforesaid:- 8.3.1the auditors shall be entitled to obtain professional valuations in respect of any of the Company's assets and shall be considered to be acting as experts and not as arbitrators or arbiters and accordingly any provisions of law or statute relating to arbitration shall not apply; and 8.3.2the auditors shall value each share on the basis of the value of (i) the Company as a going concern at the date of the transfer notice (after taking into account any contingent liability of the Company for taxation on unrealised capital gains and any contingent taxation); (ii) the right attaching to each such share including without limitation in respect of accrued but unpaid interest; and (iii) without any discount for a minority share holding. Provided that if a third party purchaser has offered to acquire from the proposing transferor all the shares comprised in the transfer notice and the proposing transferor provides evidence satisfactory to the purchasing class members that such agreement is a bona fide agreement, then the fair value of such shares shall be deemed to be the price which the third party purchaser has offered to pay and the auditors shall certify the fair value accordingly. Forthwith upon receipt of the certificate of the auditors, the Company shall by notice in writing inform all class members of the certified fair value of each share and of the price per share (being the lower of the price specified in the transfer notice and the certified fair value of each share) at which the shares comprised in the transfer notice are offered for sale. A transfer notice may be withdrawn by the proposing transferor by written notice to the Company within 10 days of receipt of the Company's written notice confirming all class members of the certified fair value of each share if the same is lower than the price specified in the transfer notice and the proposing transferee does not wish to sell the shares the subject of the transfer notice at the fair value. In this event the proposing transferor shall pay the auditors' costs in producing the certified fair value. 8.4 If purchasing class members shall be found for all the shares comprised in the transfer notice within the appropriate period specified in Article 8.2, and the transfer notice has not been withdrawn pursuant to Article 8.3 above the Company shall not later than seven days after the expiry of such appropriate period give notice in writing (hereinafter called "the sale notice") to the proposing transferor specifying the purchasing class members and the proposing transferor shall be bound upon payment of the price due in respect of all the shares comprised in the transfer notice to transfer the shares to the purchasing class members. 8.5 If the Company shall not give a sale notice to the proposing transferor within the time specified in Article 8.4 or subject to the proviso contained in Article 8.2 if at the date of the transfer notice there is no member other than the proposing transferor who holds shares of the same class as those comprised in the transfer notice, the transfer notice shall thenceforth be deemed to constitute the Company the agent of the proposing transferor for the sale of all (but not some only) of the shares comprised in the transfer notice together with all rights then attached thereto to any member or members willing to purchase the same (whether or not a class member) at the price specified therein or at the fair value certified in accordance with Article 8.3 (whichever shall be the lower). In any such case the provisions of Articles 8.2 to 8.4 (inclusive) shall apply mutatis mutandis as if references therein to class members were to members (of whatever class) and references to purchasing class members were to purchasing members (of whatever class) and as if the period for service of the offer notice referred to in Article 8.2 was the period of seven days immediately following the expiry of the appropriate period for service of a sale notice on purchasing class members without such a sale notice being served. 8.6 Notwithstanding the provisions of Article 8.5 but subject to the provisions of Article 8.8, if purchasing class members shall have been found for some only of the shares comprised in the transfer notice pursuant to Article 8.2 the claims of such purchasing class members made pursuant to Article 8.2 shall first be satisfied in preference to the claims of members of any other class made pursuant to Article 8.5. 8.7 If in any case the proposing transferor after having become bound in accordance with the provisions of this Article 8 to transfer shares makes default in transferring any such shares the Company may receive the purchase money on his behalf and may authorise some person to execute a transfer of such shares on behalf of and as attorney for the proposing transferor in favour of the purchasing class member or purchasing members as the case may be. The receipt of the Company for the purchase money shall be a good discharge to the purchasing class member or purchasing members as the case may be. The Company shall pay the purchase money into a separate bank account and shall hold the same on trust for the proposing transferor. 8.8 If the Company shall not give a sale notice to the proposing transferor within the time specified for that purpose (by virtue of Article 8.5) in Article 8.4 in respect of sales to purchasing members of whatever class, he shall, during the period of thirty days next following the expiry of the time so specified, be at liberty to transfer all or any of the shares comprised in the transfer notice to any person or persons provided that the price per share obtained upon such share transfer shall in no circumstances be less than the price per share specified in the transfer notice served in accordance with Article 8.1 or as certified in accordance with Article 8.3 (whichever shall be the lower) and the proposing transferor shall upon request furnish such information to the directors as they shall require in relation to the price per share obtained as aforesaid. The directors may require to be satisfied that such shares are being transferred in pursuance of a bona fide sale for the consideration stated in the transfer without deduction, rebate or allowance whatsoever to the purchaser, and if not so satisfied, may refuse to register the instrument of transfer. 8.9 Any transfer or purported transfer of a share (other than upon transmission of a share pursuant to regulation 29 of Table A upon the death of a member or upon a person becoming entitled to a share in consequence of the bankruptcy of a member) made otherwise than in accordance with the foregoing provisions of Articles 8.A.1 to 8.8 (inclusive) shall be null and void and of no effect. 8.10 If and when required by notice in writing by the holder or holders of (in aggregate) a majority in nominal value of the other shares in the Company so to do (the "call notice"):- 8.10.1 a member who transfers or purports to transfer any share in the Company in breach of the foregoing provisions of these Articles shall be bound to give transfer notices in respect of all shares which he has transferred or purported to transfer in breach of these Articles and any shares which he is required to give a transfer notice in respect thereof in accordance with Article 8.A.1; or 8.10.2 a member who causes or permits any of the events specified in Article 8.11 or with regard to whom any of the events specified in Article 8.11.4 or 8.11.5 occurs shall be bound to give transfer notices in respect of all the shares registered in the name of such member in accordance with Article 8.A.1. In the event of such member failing to serve a transfer notice pursuant to Article 8.10.1 or 8.10.2 within thirty days of the date of the call notice such member shall be deemed to have given transfer notices at the expiration of such period of thirty days in respect of all shares registered in the name of such member in accordance with Article 8.A.1 and to have specified therein as the price per share the fair value of each share to be certified in accordance with Article 8.3. The provisions of Articles 8.2 to 8.8 (inclusive) and Article 8.13 shall mutatis mutandis apply. 8.11 The events specified for the purposes of Article 8.10 are:- 8.11.1 any direction (by way of renunciation nomination or otherwise) by a member entitled to an allotment or transfer of shares to the effect that such shares or any of them be allotted or issued or transferred to some person other than himself; 8.11.2 any sale, dealing with or other disposition of any beneficial interest in a share (whether or not for consideration or otherwise but excluding any transmission of a share to any person becoming entitled to such share in consequence of the death or bankruptcy of a member) by whomsoever made and whether or not effected by an instrument in writing save where the disposition is by service of a transfer notice in accordance with these Articles; 8.11.3 the holding of a share as a bare nominee for any person; 8.11.4 in the case of a corporate member, such member entering into liquidation (except a members' voluntary liquidation for the purpose of reconstruction or amalgamation) or suffering an administrative receiver to be appointed over all or any of its assets or suffering an administration order to be made against it or anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that corporate member. 8.12 The directors shall not register any transfer of shares if as a result of such transfer there would be Default pursuant to (and as defined in) the Credit Agreement. 8.13 The directors may, in their absolute discretion and without assigning any reason therefor, decline to register any transfer which would otherwise be permitted under the foregoing provisions of this Article 8 if it is a transfer of a share on which the Company has a lien of a share (not being a fully paid share) to a person who is not already a member and of whom they shall not approve. The directors may also refuse to register a transfer unless:- 8.13.1 it is lodged at the office or at such other place as the directors may appoint and is accompanied by the certificate for the shares to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; and 8.13.2 it is in respect of only one class of shares; and 8.13.3 it is in favour of not more than four transferees. The directors shall register a transfer of shares made pursuant to Articles 8.A.1 to 8.8 (inclusive) or Article 8.14 subject to the provisions of this Article 8.13 and Article 8.15 Regulation 24 of Table A shall not apply to the Company. 8.14 Subject to Article 8.12 and Article 8.13 but notwithstanding any other provision contained in these Articles, the restrictions on transfer contained in this Article 8 shall not apply to:- 8.14.1 any transfer by a corporate member to an associated undertaking (as defined in section 27(3) of the Companies Act 1989) provided always that if the transferee company ceases to be an associated undertaking at any time the transferee company shall within 10 days of such cessation transfer all shares held by it to another associated undertaking of the original corporate member provided that if the transferee company defaults in making such a transfer within the time period specified the transferee company shall be deemed to have served a transfer notice in respect of all shares held by it and to have specified therein as the price per share the fair value of each share to be certified in accordance with Article 8.3 and the provisions of Articles 8.A.1 to 8.8 (inclusive ) and Article 8.13 shall mutatis mutandis apply; 8.14.2 any transfer by a corporate member to a company formed to acquire the whole or substantially the whole of the undertaking and assets of such corporate member as part of a scheme of amalgamation or reconstruction. 9 General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 10 Notice of general meetings 10.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person as a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in accordance with section 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 10.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting, with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 10.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 11 Proceedings at general meetings 11.1 The words "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 11.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the members present in person or by proxy or (being a body corporate) by representative being not less than two persons entitled to vote upon the business to be transacted shall constitute a quorum and in any other case such adjourned general meeting shall be dissolved. Regulation 41 of Table A shall not apply to the Company. 11.3 Any member may participate in a meeting of members by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participate in a meeting in this matter shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting is. 12 Votes of members 12.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have one vote for each share of which he is the holder. 12.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 12.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 12.4 Regulation 50 of Table A shall apply to the Company subject to any provision of the Equity Contribution Agreement. 13 Alternate directors 13.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present and generally to perform all the functions of his appointor at such meeting as a director in his absence. An alternate director shall not be entitled to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 13.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of regulation 88 shall not apply to the Company. 13.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 13.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 14 Appointment and retirement of directors 14.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 14.2 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 14.3 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with regulation 64 of Table A as the maximum number of directors for the time being in force. 14.4 A member shall have the right to appoint and remove one director of the Company for each 15% in nominal value of ordinary shares held by it. Any such appointment or removal shall be made by notice in writing to the Company signed by or on behalf of the member making the appointment or removal and shall take effect upon lodgement of such notice at the registered office of the Company. Any member ceasing to held the required percentage of ordinary shares for the number of directors appointed by it pursuant to this Article 14.4 shall forthwith procure the resignation of such number of directors of the Company appointed by it as is necessary to restore the correct number of directors it is permitted to appoint. 15 Disqualification and removal of directors The office of a director shall be vacated if:- 15.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 15.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 15.3 he is, or may be, suffering from mental disorder and either:- 15.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960, or 15.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 15.4 he resigns his office by notice to the Company; or 15.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of directors held during that period and the directors resolve that his office be vacated, and regulation 81 of Table A shall not apply to the Company. 16 Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the directors shall be entitled to retain any benefits received by them or any of them by reason of the exercise of any such powers. 17 Proceedings of the directors 17.1 Subject to the directors the nature and extent of any interest of his, a director notwithstanding his office:-provisions of the Act, and provided that he has disclosed to the 17.1.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 17.1.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 17.1.3 may, or any firm or company of which he is a member or director may, act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 17.1.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 17.1.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 17.1.1 to 17.1.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 17.2 For the purposes of Article 17.1:- 17.2.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 17.2.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 17.2.3 an interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when these Articles were adopted) connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 17.3 Any director including an alternate director may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 17.4 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom." the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate director, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 17.5 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 18 The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 19 Notices 19.1 In regulation 112 of Table A, the words "by facsimile to a facsimile number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 19.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by facsimile receipt of the appropriate answer back shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time of transmission following receipt of the appropriate answer back. Regulation 115 of Table A shall not apply to the Company. 19.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirmatory copies of the notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 20 Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 21 Indemnity 21.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgement is given in his favour or in which he is acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 21.2 The directors shall have power to purchase and maintain for any director, (including an alternate director) officer or auditor of the Company insurance against any such liability as is referred to in section 310 (1) of the Act and, subject to the provisions of the Act, against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director, (including as an alternate director) officer or auditor. 21.3 The directors may authorise the directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred to in Article 21.2. EX-99 29 EPR ELY POWER LIMITED MEMO. & ART. OF ASSOC. THE COMPANIES ACT 1985 COMPANY LIMITED BY SHARES MEMORANDUM AND ARTICLES OF ASSOCIATION OF EPR ELY POWER LIMITED 1. The name of the Company is EPR ELY POWER LIMITED. 2. The registered office of the Company will be situate in England and Wales. 3. The objects for which the Company is established are:- (A) To carry on the business of a holding company in all its branches and to coordinate the policy and administration of any subsidiary company; to carry on, participate in, undertake and perform all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents and contractors, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, marketing and business consultants, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all or any kinds of commercial, industrial, trading and financial operations and enterprises; to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. (B) To carry on any other business or trade which in the opinion of the Board of Directors may be conveniently or advantageously carried on in connection with or as ancillary to any of the above businesses or be calculated directly or indirectly to enhance the value of or render profitable any of the property of the Company or to further any of its objects. (C) To purchase, take options over, take on lease or in exchange, hire or otherwise acquire and hold for any estate or interest whatsoever any movable or immovable property, whether tangible or intangible and wheresoever situate, which the Board of Directors may think necessary or convenient for the purposes of the business of the Company, and to improve, manage, construct, repair, develop, exchange, let on lease or otherwise deal with all or any part of the property and rights of the Company. (D) To build, construct, maintain, develop, alter, enlarge, improve, pull down, remove or replace any buildings, works, roads, railways, tramways, sidings, bridges, reservoirs, shops, stores, factories, plant and machinery necessary or convenient for the business of the Company and to join with any person, firm or company in doing any of the things aforesaid. (E) To borrow or raise or secure the repayment of moneys raised or borrowed for the purposes of or in connection with the business of the Company in any manner and in particular to issue and deposit any mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's undertaking, property or assets (whether present or future) including its uncalled capital (if any) and to issue at par or at a premium or discount, and for such consideration and with and subject to such rights, powers, privileges and conditions as may be thought fit, debentures or debenture stock, either permanent or redeemable or repayable, and collaterally or further to secure any securities of the Company by a trust deed or other assurance. (F) To issue and deposit any securities which the Company has power to issue by way of mortgage to secure any sum less than the nominal amount of such securities and also by way of security or guarantee for the performance by the Company or any other person firm or company having dealings with the Company or in whose business or undertakings the Company is interested whether directly or indirectly of any contract or liability undertaken thereby or which may become binding thereon as the case may be (G) To lend and advance money or give credit on such terms as may seem expedient and with or without security to customers and others, to enter into guarantees, contracts of indemnity and suretyships of all kinds, to receive money on deposit or loan upon any terms, to secure or guarantee the payment of any sums of money or the performance of any obligation by any company, firm or person including any holding company, subsidiary or fellow subsidiary company in any manner, and generally to act as bankers for customers and others. (H) To receive money on deposit or loan upon such terms as the Company may approve, and to give guarantees or become security for the obligations and contracts of any person, firm or company including the obligations and contracts of customers. (I) To invest and deal with the moneys of the Company not immediately required for the purpose of its business in or upon such investments and securities and in such manner as may from time to time be considered expedient. (J) To acquire or undertake the whole or any part of the business, goodwill, property, assets and liabilities of any person, firm, or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on or which can be carried on in conjunction therewith or which are capable of being conducted so as directly or indirectly to benefit the Company. (K) To apply for and take out, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes or information, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under or grant licences or privileges in respect of the same whether exclusive or non-exclusive, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. (L) To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, scrip, warrants, debentures and other negotiable or transferable instruments. (M) To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company's constitution, or for any other purpose which may seem calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company's interests. (N) To enter any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which the Company may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges, and concessions. (O) To enter into any partnerships or joint-purchase arrangement or arrangement for sharing profits, union of interests or co-operation with any company, firm or person carrying on or proposing to carry on any business which this Company is authorised to carry on or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company, and to acquire and hold, sell, deal with or dispose of shares, stock or securities of any such company, firm or person and to guarantee the contracts or liabilities of, or the payment of the dividends, interest or capital of any shares, stock or securities of and to subsidise or otherwise assist any such. (P) To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem desirable in respect of any business or operations of or generally in relation to any such company or companies. (Q) To subscribe for, take, purchase or otherwise acquire and hold shares stocks, debentures, debenture stocks, bonds or other interests in or securities of any other company having objects altogether or in part similar to those of the Company or carrying on any business capable of being carried on so as directly or indirectly to benefit the Company or enhance the value of any of its property and to co- ordinate, finance and manage the business and operations of any company in which the Company holds any such interest. (R) To establish finance or promote or concur in establishing financing or promoting any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may directly or indirectly appear likely to assist or benefit the Company or to enhance the value of any property or business of the Company and to issue, place, underwrite or guarantee the subscription of, or concur or assist in the issuing or placing, underwriting or guaranteeing the subscription of shares, debentures, debenture stock, bonds, stocks and securities of any company, whether limited or unlimited or incorporated by Act of Parliament or otherwise, at such times and upon such terms and conditions as to remuneration and otherwise as may be agreed upon and to hold or dispose of such shares or securities or guarantee the payment of the dividends, interest or capital of any such shares or securities issued by or any other obligations of any such company. (S) To sell, exchange, lease, licence, turn to account or otherwise dispose of the whole or any part of the business property or undertaking of the Company, either together or in portions and to accept payment therefor either in cash, by instalments or otherwise, or in fully or partly paid-up shares of any company or corporation formed or to be formed for purchasing the same (with or without deferred or preferred or special rights or restrictions in respect of dividend, repayment of capital, voting or otherwise) or in debentures or mortgage debentures or debenture stock, mortgages or other securities of any such company or corporation, or partly in one mode and partly in another, and generally on such terms as the Company may determine, and to hold, dispose of or otherwise deal with any shares, stock or securities so acquired. (T) To the extent permitted by law to give financial assistance for the purpose of the acquisition of shares of the Company or of any company of which the Company is a subsidiary and for the purpose of reducing or discharging a liability incurred for the purpose of such an acquisition and to give such assistance by means of a gift, loan or guarantee, indemnity, the provision of security or otherwise. (U) To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise as may be thought expedient. (V) To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or of any company formed or promoted by the Company or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling or guaranteeing the subscription of any shares or other securities of the Company. (W) To support or subscribe to any charitable, benevolent or useful object of a public character and to establish, support and subscribe to any association, institution, society, fund or club which may be for the benefit of the Company or its Directors, ex-Directors, employees, or ex-employees or may be connected with any town or place where the Company carries on business; to give or award pensions, annuities, gratuities, bonuses and superannuation or other allowances or benefits or charitable aid and generally to provide advantages, facilities and services for any persons who are or have been Directors of, or who are or have been employed by, or who are serving or have served the Company, or of any company which is a subsidiary of the Company or the holding company of the Company or a fellow subsidiary of the Company or the predecessors in business of the Company or of any such subsidiary, holding or fellow subsidiary company and to the wives, widows, children and other relatives and dependants of such persons; to make payments towards insurance for the benefit of such persons as aforesaid; and to set up, establish support and maintain superannuation and other funds or schemes (whether contributory or non-contributory) for the benefit of any of such persons and of their wives, widows, children and other relatives and dependants; and to set up, establish, support and maintain profit sharing, share purchase and share option schemes for the benefit of any of the employees or Directors of the Company or of any such subsidiary, holding or fellow subsidiary company and to lend money to any such employees or to trustees on their behalf to enable any such schemes to be established or maintained. (X) To distribute among the members in specie any property of the Company, or any proceeds of sale or disposal of any property of the Company, and for such purpose to distinguish and separate capital profits, but so that no distribution amounting to a reduction of capital be made except with the sanction (if any) for the time being required by law. (Y) To procure the Company to be registered or recognised in any part of the world and to do all or any of the things or matters aforesaid in any part of the world and either as principals, agents, trustees, contractors, sub-contractors or otherwise, and by or through agents, brokers, sub-contractors, trustees or otherwise and either alone or in conjunction with others. (Z) To do all such things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. The objects set forth in each sub-clause of this Clause shall not be restrictively construed but the widest interpretations shall be given thereto, and they shall not, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause or from the terms of any other sub-clause or from the name of the Company. None of such sub-clauses or the object or objects therein specified or the powers thereby conferred shall be deemed subsidiary or ancillary to the objects or powers mentioned in any other sub-clause, but the Company shall have as full a power to exercise all or any of the objects conferred by and provided in each of the said sub-clauses as if each sub-clause contained the objects of a separate company. The word "company" in this Clause, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere. 4. The liability of the members is limited. 5. The share capital of the Company is(pound)7,714,286 divided into 7,714,286 shares of(pound)1 each. We, the several persons whose names and addresses are subscribed, are desirous of being formed into a Company in pursuance of this Memorandum of Association, and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. - --------------------------------------------------------------------------- Names, addresses and descriptions Number of Shares agreed Subscribers to be taken by each Subscriber - --------------------------------------------------------------------------- Rachelle Sellek One Fitzalan House Fitzalan Road Cardiff CF2 1XZ Solicitor Yu-Ho Cheung One Fitzalan House Fitzalan Road Cardiff CF2 1XZ Solicitor Dated the 26th day of June 1998 Witness to the above signatures:- Dawn Gillard Fitzalan House Fitzalan Road Cardiff CF2 1XZ Secretary The Companies Act 1985 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION of EPR ELY POWER LIMITED 1 Preliminary The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded or varied) and these Articles shall be the regulations of the Company. 2 Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" The Companies Act 1985 including any statutory modification or re-enactment thereof for the time being in force "A" preference shares" Together the "A1" preference shares and the "A2" preference shares "A1" preference shares" The "A1" redeemable preference shares of(pound)1.00 each "A2" preference shares" The "A2" redeemable preference shares of(pound)1.00 each "these Articles" These Articles of Association, whether as originally adopted or as from time to time altered by special resolution "B" preference shares" The "B" redeemable preference shares of(pound)1.00 each "clear days" In relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect "the Completion Date" The Completion Date as defined in the Equity Contribution Agreement. "the Credit Agreement" The Credit Agreement as defined in the Equity Contribution Agreement "the directors" The directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company "Equity The equity contribution agreement entered into on the Contribution Agreement" date of adoption of these Articles in relation to shares in the Company "executed" Includes any mode of execution "the holder" In relation to shares means the member whose name is entered in the register of members as the holder of the shares "office" The registered office of the Company "ordinary shares" The ordinary shares of(pound)1.00 each "preference shares" Together the "A1" preference shares, the "A2" preference shares and the "B" preference shares "seal" The common seal of the Company (if any) "secretary" The secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary "share" Includes any interest in a share "the United Kingdom" Great Britain and Northern Ireland. Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. 3 Share capital 3.1 The authorised share capital of the Company at the time of adoption of these Articles is(pound)7,714,286 divided into 714,286 ordinary shares, 1,500,000 "A1" preference shares, 1,500,000 "A2" preference shares and 4,000,000 "B" preference shares. 3.2 Save as may be provided by regulation 110 of Table A and subject to any contrary direction given by the Company in general meeting by special resolution and save as provided in Article 3.3 below all shares which are comprised in the authorised share capital of the Company from time to time which the directors propose to issue shall first be offered, at par or at a premium and upon such other terms and conditions as the directors may determine, to the members who are holders of the same class of shares as those to be issued at the time of the offer in proportion to the number of the existing shares of that class held by them respectively and at the same price. Each such offer shall be made by notice specifying the total number and class of shares being offered to the members holding shares of that class as a whole, the proportionate entitlement of the member to whom the offer is made and the price per share and shall require each member to state in writing within a period (not being less than fourteen days) specified in the notice whether he is willing to take any and, if so, what maximum number of the said shares up to his proportionate entitlement. An offer, if not accepted within the period specified as regards any shares, will be deemed to be declined as regards those shares. After the expiration of such period, those shares so deemed to be declined shall be offered in proportion as aforesaid to the persons holding shares of the same class who have, within the said period, accepted all the shares offered to them; such further offer shall be made in like terms in the same manner and limited by a like period as the original offer. Any shares not accepted pursuant to such offer or further offer as aforesaid or not capable of being offered as aforesaid except by way of fractions shall not be issued. Any shares released from the provisions of this Article by any such special resolution as aforesaid shall be under the control of the directors, who may allot, grant options over or otherwise dispose of the same to such persons, on such terms, and in such manner as they think fit. No share shall be issued at a discount or otherwise in breach of the provisions of these Articles or of the Act. 3.3 The provisions of Article 3.2 shall not apply to the issue and allotment of the ordinary shares and preference shares in the Company expressly provided for in the Equity Contribution Agreement. 3.4 Subject to any special rights conferred upon the holders of any shares or class of shares, any share in the Company may be issued with or have attached thereto such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as the Company may by special resolution determine. 3.5 Subject to the Act, any preference shares may be issued on the terms that they are, or at the option of the Company are to be liable, to be redeemed on such terms and in such manner as the Company may by special resolution determine. 4 Rights of preference shares The rights attaching to the preference shares are as follows:- 4.1 as regards capital:- on a return of capital on liquidation or otherwise the assets of the Company available for distribution among the members shall be applied first in repaying to the holders of the preference shares an amount equal to the par value of such shares but the preference shares shall not entitle the holders thereof to any further or other right of participation in the assets of the Company; 4.2 as regards redemption of the "A" preference shares:- the Company shall (subject to the provisions of the Act) redeem the "A1" preference shares and the "A2" preference shares (which shall rank as one class of shares for the purposes of redemption) at par in six equal half yearly instalments payable in each of the three following years commencing six months after the twelfth anniversary of the Completion Date provided that where there is more than one holder of either class of "A" preference shares the shares of each such class to be redeemed shall be redeemed in proportion to the number of that class of "A" preference shares held by each such holder respectively. 4.3 as regards redemption of the "B" preference shares:- the Company shall (subject to the provisions of the Act) redeem the "B" preference shares at par in six equal annual instalments payable in each of the six years commencing on the seventh anniversary of the Completion Date provided that where there is more than one holder of "B" preference shares the "B" preference shares shall be redeemed in proportion to the number of "B" preference shares held by each such holder respectively. 4.4 any notice of redemption shall specify the class and number of shares to be redeemed, the date fixed for redemption and the place at which the certificates for such shares are to be presented for redemption and upon such date each of the holders of the shares concerned shall be bound to deliver to the Company at such place the certificates for such of the preference shares concerned as are held by him in order that the same may be cancelled. Upon such delivery the Company shall pay to such holder (or, in the case of joint holders, to the holder whose name stands first in the register in respect of such shares) the amount then due to him in respect of such redemption; 4.5 notwithstanding any other provision of these Articles, each of the preference shares not previously redeemed shall be redeemed on the sixteenth anniversary of the Completion Date or as soon thereafter as the Company shall be able to comply with the provisions of the Act as to redemption at par, in accordance with the foregoing provisions of this Article 4 so far as the same are applicable; 4.6 as regards dividends the profits of the Company available for distribution shall be used to pay dividends in the following order of priority:- 4.6.1firstly in paying to the holders of the "B" preference shares a fixed dividend of 10.5% per annum accruing from 1 September 2000. Such dividends shall be paid half-yearly on or as soon as reasonably practicable after each record date being 28 February and 31 August in each year provided that if any such dividends are not paid on the due date interest shall accrue on the amount of the unpaid dividends at the rate of 10.5% per annum accruing on a daily basis from the date that such dividends were due to be paid until the date of payment (whether before or after any judgement); 4.6.2secondly in paying to the holders of the ordinary shares and the "A" preference shares such amount as the directors may determine provided that:- 4.6.2.1 there are no arrears of any dividends previously declared or unpaid interest on any such dividends; 4.6.2.2 the ordinary shares, the "A1" and the "A2" preference shares shall subject to Article 4.6.2.3 rank as one class for the purpose of the declaration and payment of any dividends; 4.6.2.3 the directors shall pay dividends on the "A2" preference shares equal to three sevenths of such dividends as are paid on the "A1" preference shares provided always that the payment of any dividends shall be subject to the restrictions contained in the Credit Agreement, the Inter-creditor Deed (as defined in the Credit Agreement) and the Equity Contribution Agreement; 4.7 as regards voting:- the preference shares shall not carry any right to attend and vote at general meetings of the Company. 5 Modification of class rights Subject to the Act, all or any of the special rights for the time being attached to any class of shares for the time being issued may from time to time (whether or not the Company is being wound up) be altered or abrogated with the consent in writing of the holders of not less than 75% of the issued shares of that class or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of such shares. To any such separate general meeting all the provisions of the regulations of the Company as to general meetings of the Company shall mutatis mutandis apply, but so that the necessary quorum shall be two persons at least holding or representing by proxy not less than 75% of the issued shares of the class. If such separate meeting shall be adjourned owing to the absence of a quorum and if at the adjourned meeting a quorum shall not be present within half-an-hour from the time appointed for such adjourned meeting the holder or holders of shares of the class concerned who are present in person or by proxy shall constitute a quorum. Every holder of shares of the class shall be entitled on a poll to one vote for every such share held by him and any holder of shares of the class present in person or by proxy may demand a poll. 6 Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company whether or not in respect of the shares in question. Regulation 8 of Table A shall be modified accordingly. 7 Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 8 Transfer of shares 8.A.1Where any person is the holder of shares in more than one class and he gives a transfer notice under Article 8.1 in respect of shares in one of such classes (the "prime transfer notice") but not in respect of shares in every other class of which he is a member, he shall be deemed to have also given a transfer notice (a "secondary transfer notice") in respect of shares in each other class of shares of which he is a member specifying in each such secondary transfer notice as the number of shares in such class which he is willing to sell that number of shares which is equal to the total number of shares in that class held by such person at the date of giving the secondary transfer notice reduced by the same proportion (in percentage terms) as the number of shares specified as being available for sale in the prime transfer notice bears to the total number of shares held by such person at such date in the class of shares which are the subject of the prime transfer notice. For the purposes of the following provisions of this Article 8 any reference to a transfer notice shall mean a prime transfer notice and each secondary transfer notice severally. 8.A.2The directors shall not register a transfer pursuant to a prime transfer notice or a secondary transfer notice unless at the time of transfer of such shares such purchasing class member or purchasing member or third party purchaser also acquired shares in each other class of shares in respect of which the proposing transferor shall have given notice to the Company as required by Article 8.A.1, the number of shares to be acquired in respect of each such class being that properly specified in the relevant transfer notice given by the proposing transferor in accordance with Article 8.A.1. 8.A.3The proposing transferor and the purchasing class member or purchasing member or third party purchaser and the Company shall each use their respective best endeavours to ensure that the application of the provisions of Article 8 in respect of the prime transfer notice and each secondary transfer notice shall be effected contemporaneously so far as practicable. If a proposing transferor gives a transfer notice in respect of shares which he holds in each class of shares of which he is a class member simultaneously the transfer notice in respect of the ordinary shares which he holds shall be deemed the prime transfer notice. 8.1 Any person (hereinafter called "the proposing transferor") proposing to transfer any shares of any class shall give notice in writing (hereinafter called "the transfer notice") to the Company that he desires to transfer the same and specifying the price per share at which he is willing to sell them. The transfer notice shall constitute the Company the agent of the proposing transferor for the sale of all (but not some only) of the shares comprised in the transfer notice together with all rights then attached thereto to any member or members holding shares of the same class as those comprised in the transfer notice and willing to purchase the same (hereinafter called "purchasing class members") at the price specified therein or at the fair value determined in accordance with Article 8.3 (whichever shall be the lower). A transfer notice shall not (save as provided in Article 8.3) be revocable except with the sanction of the directors and shall be comprised of one class of share only so that separate transfer notices are required in respect of proposed transfers of separate classes of shares. 8.2 The shares comprised in any transfer notice shall be offered to the members (other than the proposing transferor) holding shares of the same class as those comprised in the transfer notice (hereinafter called "class members") as nearly as may be in proportion to the number of shares of the said class held by them respectively provided that if at the date a transfer notice is given in respect of either class of "A" preference shares there is no member other than the proposing transferor who holds shares of the same class of "A" preference shares comprised in the transfer notice then both classes of "A" preference shares shall rank as one class of shares for the purposes of this Article 8.2. Such offer shall be made by notice in writing (hereinafter called "the offer notice") within seven days after the receipt by the Company of the transfer notice. The offer notice shall:- 8.2.1state the identity of the proposing transferor, the number and class of shares comprised in the transfer notice (in accordance with Article 8.A.1) and the price per share specified in the transfer notice and inform the class members that shares are offered to them in accordance with the provisions of this Article 8.2; 8.2.2contain a statement to the effect that the shares are offered only in the proportion referred to in the opening sentence of this Article 8.2 ; 8.2.3contain a statement of the right of each class member to request a certificate of fair value under Article 8.3, the form of such statement to be as near as circumstances permit to that of the first sentence of that Article; 8.2.4contain a statement to the effect that each of the shares in question is being offered to class members at the lower of the price specified in the transfer notice and (if applicable) its fair value certified in accordance with Article 8.3; 8.2.5state the period in which the offer may be accepted if no such certificate of fair value is requested (not being less than twenty-two days or more than forty-two days after the date of the offer notice); and 8.2.6contain a statement to the effect that, if such a certificate of fair value is requested, the offer will remain open for acceptance until the expiry of a period of fourteen days commencing on the date of the notice of the certified fair value given to class members pursuant to Article 8.3 or until the expiry of the period referred to in Article 8.2.5 whichever is the later. For the purpose of this Article an offer shall be deemed to be accepted on the day on which the acceptance is received by the Company. If any shares shall not be capable of being offered to the class members in proportion to their existing holdings, except by way of fractions the same shall be offered to the class members, or some of them, in such proportions as the directors may think fit. 8.3 Any class member may, not later than eight days after the date of the offer notice, serve on the Company a notice in writing requesting that the auditors for the time being of the Company certify in writing the sum which in their opinion represents the fair value of each share comprised in the transfer notice as at the date of the transfer notice on the basis of a willing seller and a willing buyer. If the auditors decline such appointment at their discretion then a person nominated by the President for the time being of the Institute of Chartered Accountants in the country of the situation of the office on the application of the directors or any class member on behalf of the Company shall be instructed to give such certificate and any following reference in these Articles to the auditors shall include any person so nominated. Forthwith upon receipt of such notice the Company shall instruct the auditors to certify as aforesaid and the costs of producing such certificate shall be apportioned among the proposing transferor and the purchasing class members and borne by any one or more of them as the auditors in their absolute discretion shall decide. Subject as provided below in certifying the fair value as aforesaid:- 8.3.1the auditors shall be entitled to obtain professional valuations in respect of any of the Company's assets and shall be considered to be acting as experts and not as arbitrators or arbiters and accordingly any provisions of law or statute relating to arbitration shall not apply; and 8.3.2the auditors shall value each share on the basis of the value of (i) the Company as a going concern at the date of the transfer notice (after taking into account any contingent liability of the Company for taxation on unrealised capital gains and any contingent taxation); (ii) the right attaching to each such share including without limitation in respect of accrued but unpaid interest; and (iii) without any discount for a minority share holding. Provided that if a third party purchaser has offered to acquire from the proposing transferor all the shares comprised in the transfer notice and the proposing transferor provides evidence satisfactory to the purchasing class members that such agreement is a bona fide agreement, then the fair value of such shares shall be deemed to be the price which the third party purchaser has offered to pay and the auditors shall certify the fair value accordingly. Forthwith upon receipt of the certificate of the auditors, the Company shall by notice in writing inform all class members of the certified fair value of each share and of the price per share (being the lower of the price specified in the transfer notice and the certified fair value of each share) at which the shares comprised in the transfer notice are offered for sale. A transfer notice may be withdrawn by the proposing transferor by written notice to the Company within 10 days of receipt of the Company's written notice confirming all class members of the certified fair value of each share if the same is lower than the price specified in the transfer notice and the proposing transferee does not wish to sell the shares the subject of the transfer notice at the fair value. In this event the proposing transferor shall pay the auditors' costs in producing the certified fair value. 8.4 If purchasing class members shall be found for all the shares comprised in the transfer notice within the appropriate period specified in Article 8.2, and the transfer notice has not been withdrawn pursuant to Article 8.3 above the Company shall not later than seven days after the expiry of such appropriate period give notice in writing (hereinafter called "the sale notice") to the proposing transferor specifying the purchasing class members and the proposing transferor shall be bound upon payment of the price due in respect of all the shares comprised in the transfer notice to transfer the shares to the purchasing class members. 8.5 If the Company shall not give a sale notice to the proposing transferor within the time specified in Article 8.4 or subject to the proviso contained in Article 8.2 if at the date of the transfer notice there is no member other than the proposing transferor who holds shares of the same class as those comprised in the transfer notice, the transfer notice shall thenceforth be deemed to constitute the Company the agent of the proposing transferor for the sale of all (but not some only) of the shares comprised in the transfer notice together with all rights then attached thereto to any member or members willing to purchase the same (whether or not a class member) at the price specified therein or at the fair value certified in accordance with Article 8.3 (whichever shall be the lower). In any such case the provisions of Articles 8.2 to 8.4 (inclusive) shall apply mutatis mutandis as if references therein to class members were to members (of whatever class) and references to purchasing class members were to purchasing members (of whatever class) and as if the period for service of the offer notice referred to in Article 8.2 was the period of seven days immediately following the expiry of the appropriate period for service of a sale notice on purchasing class members without such a sale notice being served. 8.6 Notwithstanding the provisions of Article 8.5 but subject to the provisions of Article 8.8, if purchasing class members shall have been found for some only of the shares comprised in the transfer notice pursuant to Article 8.2 the claims of such purchasing class members made pursuant to Article 8.2 shall first be satisfied in preference to the claims of members of any other class made pursuant to Article 8.5. 8.7 If in any case the proposing transferor after having become bound in accordance with the provisions of this Article 8 to transfer shares makes default in transferring any such shares the Company may receive the purchase money on his behalf and may authorise some person to execute a transfer of such shares on behalf of and as attorney for the proposing transferor in favour of the purchasing class member or purchasing members as the case may be. The receipt of the Company for the purchase money shall be a good discharge to the purchasing class member or purchasing members as the case may be. The Company shall pay the purchase money into a separate bank account and shall hold the same on trust for the proposing transferor. 8.8 If the Company shall not give a sale notice to the proposing transferor within the time specified for that purpose (by virtue of Article 8.5) in Article 8.4 in respect of sales to purchasing members of whatever class, he shall, during the period of thirty days next following the expiry of the time so specified, be at liberty to transfer all or any of the shares comprised in the transfer notice to any person or persons provided that the price per share obtained upon such share transfer shall in no circumstances be less than the price per share specified in the transfer notice served in accordance with Article 8.1 or as certified in accordance with Article 8.3 (whichever shall be the lower) and the proposing transferor shall upon request furnish such information to the directors as they shall require in relation to the price per share obtained as aforesaid. The directors may require to be satisfied that such shares are being transferred in pursuance of a bona fide sale for the consideration stated in the transfer without deduction, rebate or allowance whatsoever to the purchaser, and if not so satisfied, may refuse to register the instrument of transfer. 8.9 Any transfer or purported transfer of a share (other than upon transmission of a share pursuant to regulation 29 of Table A upon the death of a member or upon a person becoming entitled to a share in consequence of the bankruptcy of a member) made otherwise than in accordance with the foregoing provisions of Articles 8.A.1 to 8.8 (inclusive) shall be null and void and of no effect. 8.10 If and when required by notice in writing by the holder or holders of (in aggregate) a majority in nominal value of the other shares in the Company so to do (the "call notice"):- 8.10.1 a member who transfers or purports to transfer any share in the Company in breach of the foregoing provisions of these Articles shall be bound to give transfer notices in respect of all shares which he has transferred or purported to transfer in breach of these Articles and any shares which he is required to give a transfer notice in respect thereof in accordance with Article 8.A.1; or 8.10.2 a member who causes or permits any of the events specified in Article 8.11 or with regard to whom any of the events specified in Article 8.11.4 or 8.11.5 occurs shall be bound to give transfer notices in respect of all the shares registered in the name of such member in accordance with Article 8.A.1. In the event of such member failing to serve a transfer notice pursuant to Article 8.10.1 or 8.10.2 within thirty days of the date of the call notice such member shall be deemed to have given transfer notices at the expiration of such period of thirty days in respect of all shares registered in the name of such member in accordance with Article 8.A.1 and to have specified therein as the price per share the fair value of each share to be certified in accordance with Article 8.3. The provisions of Articles 8.2 to 8.8 (inclusive) and Article 8.13 shall mutatis mutandis apply. 8.11 The events specified for the purposes of Article 8.10 are:- 8.11.1 any direction (by way of renunciation nomination or otherwise) by a member entitled to an allotment or transfer of shares to the effect that such shares or any of them be allotted or issued or transferred to some person other than himself; 8.11.2 any sale, dealing with or other disposition of any beneficial interest in a share (whether or not for consideration or otherwise but excluding any transmission of a share to any person becoming entitled to such share in consequence of the death or bankruptcy of a member) by whomsoever made and whether or not effected by an instrument in writing save where the disposition is by service of a transfer notice in accordance with these Articles; 8.11.3 the holding of a share as a bare nominee for any person; 8.11.4 in the case of a corporate member, such member entering into liquidation (except a members' voluntary liquidation for the purpose of reconstruction or amalgamation) or suffering an administrative receiver to be appointed over all or any of its assets or suffering an administration order to be made against it or anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that corporate member. 8.12 The directors shall not register any transfer of shares if as a result of such transfer there would be Default pursuant to (and as defined in) the Credit Agreement. 8.13 The directors may, in their absolute discretion and without assigning any reason therefor, decline to register any transfer which would otherwise be permitted under the foregoing provisions of this Article 8 if it is a transfer of a share on which the Company has a lien of a share (not being a fully paid share) to a person who is not already a member and of whom they shall not approve. The directors may also refuse to register a transfer unless:- 8.13.1 it is lodged at the office or at such other place as the directors may appoint and is accompanied by the certificate for the shares to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; and 8.13.2 it is in respect of only one class of shares; and 8.13.3 it is in favour of not more than four transferees. The directors shall register a transfer of shares made pursuant to Articles 8.A.1 to 8.8 (inclusive) or Article 8.14 subject to the provisions of this Article 8.13 and Article 8.15 Regulation 24 of Table A shall not apply to the Company. 8.14 Subject to Article 8.12 and Article 8.13 but notwithstanding any other provision contained in these Articles, the restrictions on transfer contained in this Article 8 shall not apply to:- 8.14.1 any transfer by a corporate member to an associated undertaking (as defined in section 27(3) of the Companies Act 1989) provided always that if the transferee company ceases to be an associated undertaking at any time the transferee company shall within 10 days of such cessation transfer all shares held by it to another associated undertaking of the original corporate member provided that if the transferee company defaults in making such a transfer within the time period specified the transferee company shall be deemed to have served a transfer notice in respect of all shares held by it and to have specified therein as the price per share the fair value of each share to be certified in accordance with Article 8.3 and the provisions of Articles 8.A.1 to 8.8 (inclusive ) and Article 8.13 shall mutatis mutandis apply; 8.14.2 any transfer by a corporate member to a company formed to acquire the whole or substantially the whole of the undertaking and assets of such corporate member as part of a scheme of amalgamation or reconstruction. 9 General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 10 Notice of general meetings 10.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person as a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in accordance with section 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 10.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting, with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 10.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 11 Proceedings at general meetings 11.1 The words "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 11.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the members present in person or by proxy or (being a body corporate) by representative being not less than two persons entitled to vote upon the business to be transacted shall constitute a quorum and in any other case such adjourned general meeting shall be dissolved. Regulation 41 of Table A shall not apply to the Company. 11.3 Any member may participate in a meeting of members by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participate in a meeting in this matter shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting is. 12 Votes of members 12.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have one vote for each share of which he is the holder. 12.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 12.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 12.4 Regulation 50 of Table A shall apply to the Company subject to any provision of the Equity Contribution Agreement. 13 Alternate directors 13.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present and generally to perform all the functions of his appointor at such meeting as a director in his absence. An alternate director shall not be entitled to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 13.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of regulation 88 shall not apply to the Company. 13.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 13.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 14 Appointment and retirement of directors 14.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 14.2 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 14.3 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with regulation 64 of Table A as the maximum number of directors for the time being in force. 14.4 A member shall have the right to appoint and remove one director of the Company for each 15% in nominal value of ordinary shares held by it. Any such appointment or removal shall be made by notice in writing to the Company signed by or on behalf of the member making the appointment or removal and shall take effect upon lodgement of such notice at the registered office of the Company. Any member ceasing to held the required percentage of ordinary shares for the number of directors appointed by it pursuant to this Article 14.4 shall forthwith procure the resignation of such number of directors of the Company appointed by it as is necessary to restore the correct number of directors it is permitted to appoint. 15 Disqualification and removal of directors The office of a director shall be vacated if:- 15.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 15.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 15.3 he is, or may be, suffering from mental disorder and either:- 15.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960, or 15.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 15.4 he resigns his office by notice to the Company; or 15.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of directors held during that period and the directors resolve that his office be vacated, and regulation 81 of Table A shall not apply to the Company. 16 Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the directors shall be entitled to retain any benefits received by them or any of them by reason of the exercise of any such powers. 17 Proceedings of the directors 17.1 Subject to the directors the nature and extent of any interest of his, a director notwithstanding his office:-provisions of the Act, and provided that he has disclosed to the 17.1.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 17.1.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 17.1.3 may, or any firm or company of which he is a member or director may, act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 17.1.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 17.1.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 17.1.1 to 17.1.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 17.2 For the purposes of Article 17.1:- 17.2.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 17.2.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 17.2.3 an interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when these Articles were adopted) connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 17.3 Any director including an alternate director may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 17.4 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom." the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate director, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 17.5 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 18 The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 19 Notices 19.1 In regulation 112 of Table A, the words "by facsimile to a facsimile number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 19.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by facsimile receipt of the appropriate answer back shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time of transmission following receipt of the appropriate answer back. Regulation 115 of Table A shall not apply to the Company. 19.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirmatory copies of the notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 20 Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 21 Indemnity 21.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgement is given in his favour or in which he is acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 21.2 The directors shall have power to purchase and maintain for any director, (including an alternate director) officer or auditor of the Company insurance against any such liability as is referred to in section 310 (1) of the Act and, subject to the provisions of the Act, against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director, (including as an alternate director) officer or auditor. 21.3 The directors may authorise the directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred to in Article 21.2. EX-99 30 EPR ELY LIMITED MEMO. & ART. OF ASSOC. THE COMPANIES ACT 1985 AND THE COMPANIES ACT 1989 COMPANY LIMITED BY SHARES MEMORANDUM AND ARTICLES OF ASSOCIATION OF EPR ELY LIMITED 1 The Company's name is EPR ELY LIMITED. 2 The Company's registered office is to be situate in England and Wales. 3.* The objects for which the Company is established are:- (A) To carry on, participate in, undertake and perform all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents and contractors, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, marketing and business consultants, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all or any kinds of commercial, industrial, trading and financial operations and enterprises; to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. (B) To carry on any other business or trade which in the opinion of the Board of Directors may be conveniently or advantageously carried on in connection with or as ancillary to any of the above businesses or be calculated directly or indirectly to enhance the value of or render profitable any of the property of the Company or to further any of its objects. * A new objects clause 3 was inserted by special resolution passed on 9 September 1998. (C) To purchase, take options over, take on lease or in exchange, hire or otherwise acquire and hold for any estate or interest whatsoever any movable or immovable property, whether tangible or intangible and wheresoever situate, which the Board of Directors may think necessary or convenient for the purposes of the business of the Company, and to improve, manage, construct, repair, develop, exchange, let on lease or otherwise deal with all or any part of the property and rights of the Company. (D) To build, construct, maintain, develop, alter, enlarge, improve, pull down, remove or replace any buildings, works, roads, railways, tramways, sidings, bridges, reservoirs, shops, stores, factories, plant and machinery necessary or convenient for the business of the Company and to join with any person, firm or company in doing any of the things aforesaid. (E) To borrow or raise or secure the repayment of moneys raised or borrowed for the purposes of or in connection with the business of the Company in any manner and in particular to issue and deposit any mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's undertaking, property or assets (whether present or future) including its uncalled capital (if any) and to issue at par or at a premium or discount, and for such consideration and with and subject to such rights, powers, privileges and conditions as may be thought fit, debentures or debenture stock, either permanent or redeemable or repayable, and collaterally or further to secure any securities of the Company by a trust deed or other assurance. (F) To issue and deposit any securities which the Company has power to issue by way of mortgage to secure any sum less than the nominal amount of such securities and also by way of security or guarantee for the performance by the Company or any other person firm or company having dealings with the Company or in whose business or undertakings the Company is interested whether directly or indirectly of any contract or liability undertaken thereby or which may become binding thereon as the case may be. (G) To lend and advance money or give credit on such terms as may seem expedient and with or without security to customers and others, to enter into guarantees, contracts of indemnity and suretyships of all kinds, to receive money on deposit or loan upon any terms, to secure or guarantee the payment of any sums of money or the performance of any obligation by any company, firm or person including any holding company, subsidiary or fellow subsidiary company in any manner, and generally to act as bankers for customers and others. (H) To receive money on deposit or loan upon such terms as the Company may approve, and to give guarantees or become security for the obligations and contracts of any person, firm or company including the obligations and contracts of customers. (I) To invest and deal with the moneys of the Company not immediately required for the purpose of its business in or upon such investments and securities and in such manner as may from time to time be considered expedient. (J) To acquire or undertake the whole or any part of the business, goodwill, property, assets and liabilities of any person, firm, or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on or which can be carried on in conjunction therewith or which are capable of being conducted so as directly or indirectly to benefit the Company. (K) To apply for and take out, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes or information, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under or grant licences or privileges in respect of the same whether exclusive or non-exclusive, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. (L) To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, scrip, warrants, debentures and other negotiable or transferable instruments. (M) To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company's constitution, or for any other purpose which may seem calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company's interests. (N) To enter any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which the Company may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges, and concessions. (O) To enter into any partnerships or joint-purchase arrangement or arrangement for sharing profits, union of interests or co-operation with any company, firm or person carrying on or proposing to carry on any business which this Company is authorised to carry on or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company, and to acquire and hold, sell, deal with or dispose of shares, stock or securities of any such company, firm or person and to guarantee the contracts or liabilities of, or the payment of the dividends, interest or capital of any shares, stock or securities of and to subsidise or otherwise assist any such. (P) To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem desirable in respect of any business or operations of or generally in relation to any such company or companies. (Q) To subscribe for, take, purchase or otherwise acquire and hold shares stocks, debentures, debenture stocks, bonds or other interests in or securities of any other company having objects altogether or in part similar to those of the Company or carrying on any business capable of being carried on so as directly or indirectly to benefit the Company or enhance the value of any of its property and to co- ordinate, finance and manage the business and operations of any company in which the Company holds any such interest. (R) To establish finance or promote or concur in establishing financing or promoting any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may directly or indirectly appear likely to assist or benefit the Company or to enhance the value of any property or business of the Company and to issue, place, underwrite or guarantee the subscription of, or concur or assist in the issuing or placing, underwriting or guaranteeing the subscription of shares, debentures, debenture stock, bonds, stocks and securities of any company, whether limited or unlimited or incorporated by Act of Parliament or otherwise, at such times and upon such terms and conditions as to remuneration and otherwise as may be agreed upon and to hold or dispose of such shares or securities or guarantee the payment of the dividends, interest or capital of any such shares or securities issued by or any other obligations of any such company. (S) To sell, exchange, lease, licence, turn to account or otherwise dispose of the whole or any part of the business property or undertaking of the Company, either together or in portions and to accept payment therefor either in cash, by installments or otherwise, or in fully or partly paid-up shares of any company or corporation formed or to be formed for purchasing the same (with or without deferred or preferred or special rights or restrictions in respect of dividend, repayment of capital, voting or otherwise) or in debentures or mortgage debentures or debenture stock, mortgages or other securities of any such company or corporation, or partly in one mode and partly in another, and generally on such terms as the Company may determine, and to hold, dispose of or otherwise deal with any shares, stock or securities so acquired. (T) To the extent permitted by law to give financial assistance for the purpose of the acquisition of shares of the Company or of any company of which the Company is a subsidiary and for the purpose of reducing or discharging a liability incurred for the purpose of such an acquisition and to give such assistance by means of a gift, loan or guarantee, indemnity, the provision of security or otherwise. (U) To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise as may be thought expedient. (V) To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or of any company formed or promoted by the Company or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling or guaranteeing the subscription of any shares or other securities of the Company. (W) To support or subscribe to any charitable, benevolent or useful object of a public character and to establish, support and subscribe to any association, institution, society, fund or club which may be for the benefit of the Company or its Directors, ex-Directors, employees, or ex-employees or may be connected with any town or place where the Company carries on business; to give or award pensions, annuities, gratuities, bonuses and superannuation or other allowances or benefits or charitable aid and generally to provide advantages, facilities and services for any persons who are or have been Directors of, or who are or have been employed by, or who are serving or have served the Company, or of any company which is a subsidiary of the Company or the holding company of the Company or a fellow subsidiary of the Company or the predecessors in business of the Company or of any such subsidiary, holding or fellow subsidiary company and to the wives, widows, children and other relatives and dependants of such persons; to make payments towards insurance for the benefit of such persons as aforesaid; and to set up, establish support and maintain superannuation and other funds or schemes (whether contributory or non-contributory) for the benefit of any of such persons and of their wives, widows, children and other relatives and dependants; and to set up, establish, support and maintain profit sharing, share purchase and share option schemes for the benefit of any of the employees or Directors of the Company or of any such subsidiary, holding or fellow subsidiary company and to lend money to any such employees or to trustees on their behalf to enable any such schemes to be established or maintained. (X) To distribute among the members in specie any property of the Company, or any proceeds of sale or disposal of any property of the Company, and for such purpose to distinguish and separate capital profits, but so that no distribution amounting to a reduction of capital be made except with the sanction (if any) for the time being required by law. (Y) To procure the Company to be registered or recognised in any part of the world and to do all or any of the things or matters aforesaid in any part of the world and either as principals, agents, trustees, contractors, sub-contractors or otherwise, and by or through agents, brokers, sub-contractors, trustees or otherwise and either alone or in conjunction with others. (Z) To do all such things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. The objects set forth in each sub-clause of this Clause shall not be restrictively construed but the widest interpretations shall be given thereto, and they shall not, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause or from the terms of any other sub-clause or from the name of the Company. None of such sub-clauses or the object or objects therein specified or the powers thereby conferred shall be deemed subsidiary or ancillary to the objects or powers mentioned in any other sub-clause, but the Company shall have as full a power to exercise all or any of the objects conferred by and provided in each of the said sub-clauses as if each sub-clause contained the objects of a separate company. The word "company" in this Clause, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere. 4 The liability of the Members is limited. 5 The Company's share capital is(pound)1,000,000 divided into 1,000,000 shares of(pound)1.00 each** ** The share capital of the Company was increased from(pound)100 divided into 100 shares of(pound)1.00 each by ordinary resolution passed on 9 September 1998 The Companies Act 1985 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION of EPR ELY LIMITED 1. Preliminary The regulations contained in Table A to any Companies Act or Companies (Consolidation) Act prior to the Companies Act 1985 shall not apply to the Company.] The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (a copy of such Table being attached to these Articles and hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded or varied) and these Articles shall be the regulations of the Company. 2. Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" The Companies Act 1985 including any statutory modification or re-enactment thereof for the time being in force "these Articles" These Articles of Association, whether as originally adopted or as from time to time altered by special resolution "clear days" In relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect "the directors" The directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company "executed" Includes any mode of execution "the holder" In relation to shares means the member whose name is entered in the register of members as the holder of the shares "office" The registered office of the Company "seal" The common seal of the Company (if any "secretary" The secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary "share" Includes any interest in a share "the United Kingdom" Great Britain and Northern Ireland. Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. 3. Share capital 3.1 The authorised share capital of the Company at the time of adoption of these Articles is(pound)1,000,000 divided into 1,000,000 ordinary shares of(pound)1.00 each. 3.2 No shares comprised in the authorised share capital of the Company from time to time shall be issued without the consent in writing of the holder or holders (in aggregate) of a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) nor shall any share be issued at a discount or otherwise be issued in breach of the provisions of these Articles or of the Act. 3.3 Regulation 4 of Table A and, in accordance with section 91(1) of the Act, sections 89(1) and 90(1) to (6) (inclusive) of the Act shall not apply to the Company. 4. Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company. Regulation 8 of Table A shall be modified accordingly. 5. Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 6. Transfer of shares The first sentence in regulation 24 of Table A shall not apply to the Company. The words "They may also" at the beginning of the second sentence of that regulation shall be replaced by the words "The directors may". 7. General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 8. Notice of general meetings 8.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in accordance with section 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 8.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 8.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 9. Proceedings at general meetings 9.1 The words, "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 9.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the member or members present in person or by proxy or (being a body corporate) by representative and entitled to vote upon the business to be transacted shall constitute a quorum and shall have power to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. Regulation 41 of Table A shall not apply to the Company. 10. Votes of members 10.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have one vote for each share of which he is the holder. 10.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 10.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 11. Number of directors 11.1 Regulation 64 of Table A shall not apply to the Company. 11.2 The maximum number and minimum number respectively of the directors may be determined from time to time by ordinary resolution. Subject to and in default of any such determination there shall be no maximum number of directors and the minimum number of directors shall be one. 12. Alternate directors 12.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present, and generally to perform all the functions of his appointor at such meeting as a director in his absence. An alternate director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 12.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of regulation 88 shall not apply to the Company. 12.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 12.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 13. Appointment and retirement of directors 13.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 13.2 A member or members holding a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) shall have power at any time, and from time to time, to appoint any person to be a director, either as an additional director (provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force) or to fill a vacancy and to remove from office any director howsoever appointed. Any such appointment or removal shall be made by notice in writing to the Company signed by the member or members making the same or, in the case of a member being a corporate body, signed by one of its directors or duly authorised officers or by its duly authorised attorney and shall take effect upon lodgement of such notice at the office. 13.3 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 13.4 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force. 13.5 If, immediately following and as a result of the death of a member, the company has no members and if at that time it has no directors, the personal representatives of the deceased member may appoint any person to be a director and the director who is appointed will have the same rights and be subject to the same duties and obligations as if appointed by ordinary resolution in accordance with Article 13.3. If two members die in circumstances rendering it uncertain which of them survived the other, such deaths shall, for the purposes of this Article, be deemed to have occurred in order of seniority and accordingly the younger shall be deemed to have survived the elder. 14. Disqualification and removal of directors The office of a director shall be vacated if:- 14.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 14.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 14.3 he is, or may be, suffering from mental disorder and either:- 14.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960; or 14.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 14.4 he resigns his office by notice to the Company; or 14.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of the directors held during that period and the directors resolve that his office be vacated; or 14.6 he is removed from office as a director pursuant to Article 13.2, and regulation 81 of Table A shall not apply to the Company. 15. Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the directors shall be entitled to retain any benefits received by them or any of them by reason of the exercise of any such powers. 16. Proceedings of the directors 16.1 Whensoever the minimum number of the directors shall be one pursuant to the provisions of Article 11.2, a sole director shall have authority to exercise all the powers and discretions which are expressed by Table A and by these Articles to be vested in the directors generally and regulations 89 and 90 of Table A shall be modified accordingly. 16.2 Subject to the provisions of the Act, and provided that he has disclosed to the directors the nature and extent of any interest of his, a director notwithstanding his office:- 16.2.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 16.2.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 16.2.3 may, or any firm or company of which he is a member or director may, act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 16.2.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 16.2.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 16.2.1 to 16.2.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 16.3 For the purposes of Article 16.2:- 16.3.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 16.3.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 16.3.3 An interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when these Articles were adopted)]connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 16.4 Any director (including an alternate director) may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 16.5 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom." the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 16.6 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 17. The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 18. Notices 18.1 In regulation 112 of Table A, the words "by facsimile to a facsimile number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 18.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by facsimile receipt of the appropriate answerback shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time of transmission following receipt of the appropriate answerback. Regulation 115 of Table A shall not apply to the Company. 18.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirmatory copies of the notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 19. Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 20. Indemnity 20.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 20.2 The directors shall have power to purchase and maintain at the expense of the Company for the benefit of any director (including an alternate director), officer or auditor of the Company insurance against any such liability as is referred to in section 310(1) of the Act and subject to the provisions of the Act against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director (including an alternate director), officer or auditor. 20.3 The directors may authorise directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred in Article 20.2. EX-99 31 CINERGY GLOBAL PWR SVCS LTD MEMO. & ART. OF ASSOC. Company Number: 3419618 The Companies Acts 1985 to 1989 PRIVATE COMPANY LIMITED BY SHARES - ------------------------------------------------------------------------------- MEMORANDUM AND ARTICLES OF ASSOCIATION Cinergy Global Power Services Limited* Incorporated on 14th day of August, 1997 - ------------------------------------------------------------------- * The name of the Company was changed from (1) Funjust Limited to MPI International Limited recorded by Certificate of Incorporation on Change of Name dated 22 September 1997, and from (2) MPI International Limited to Cinergy Global Power Services Limited recorded by Certificate of Incorporation on Change of Name dated 1 May 1998. THE COMPANIES ACTS 1985 to 1989 PRIVATE COMPANY LIMITED BY SHARES MEMORANDUM OF ASSOCIATION OF Cinergy Global Power Services Limited* 1. The Company's name is "Cinergy Global Power Services Limited".* 2. The Company's registered office is to be situated in England and Wales. 3. The Company's objects are:- (a) (i) To carry on the business of a holding company in all its branches, and to acquire by purchase, lease, concession, grant, licence or otherwise such businesses, options, rights, privileges, lands, buildings, leases, underleases, stocks, shares, debentures, debenture stock, bonds, obligations, securities, reversionary interests, annuities, policies of assurance and other property and rights and interests in property as the Company shall deem fit and generally to hold, manage, develop, lease, sell or dispose of the same; and to vary any of the investments of the Company, to act as trustees of any deeds constituting or securing any debentures, debenture stock or other securities or obligations; to enter into, assist, or participate in financial, commercial, mercantile, industrial and other transactions, undertakings and businesses of every description, and to establish, carry on, develop and extend the same or sell, dispose of or otherwise turn the same to account, and to co-ordinate the policy and administration of any companies of which this Company is a member or which are in any manner controlled by, or connected with the Company, and to carry on all or any of the businesses of capitalists, trustees, financiers, financial agents, company promoters, bill discounters, insurance brokers and agents, mortgage brokers, rent and debt collectors, stock and share brokers and dealers and commission and general agents, merchants and traders; and to manufacture, buy, sell, maintain, repair and deal in plant, machinery, tools, articles and things of all kinds capable of being used for the purposes of the above-mentioned businesses or any of them, or likely to be required by customers of or persons having dealings with the Company. * The name of the Company was changed from (1) Funjust Limited to MPI International Limited recorded by Certificate of Incorporation on Change of Name dated 22 September 1997, and from (2) MPI International Limited to Cinergy Global Power Services Limited recorded by Certificate of Incorporation on Change of Name dated 1 May 1998. (ii) To provide persons or firms carrying on any profession, business, trade or occupation with accounting, secretarial and office services and all staff, premises, office furniture and equipment, office cleaning, repairs and decorations, lighting, heating, telephone service, cars, transport, books, periodicals, reports, photoprinting, general printing and stationery and all such services as may from time to time be required for the conduct and management of such profession, business, trade or occupation; and to carry on all or any of the businesses of secretaries, registrars, nominee shareholders, investment holders, general managers, administrators, advisers, accountants, book-keepers, agents, representatives, costing investigators, negotiators, intermediaries, business and efficiency experts, estimators, advertising managers, building society agents, insurance agents, estate agents and property managers, valuers, printers, publishers, and stationers, providers of office accommodation, and of all kinds of commercial intelligence and services, hire purchase and general financiers, company promoters and underwriters of capital issues, dealers in stocks and shares, tourist agents, social and business organisers, and dealers and contractors in and makers, importers and exporters of all kinds of goods and merchandise; and to institute, enter into, carry on, assist and participate in financial, promoting, dealing and other business works, contracts or operations of all kinds, to invest or procure the investment in, and to deal and operate in and with rights, securities, stocks, shares, debentures, bonds, articles and things of all kinds; and to undertake secretarial work and to supply or lend assistance or accommodation to or do any act or thing for companies, professional or business men or otherwise upon such terms as may be thought fit. (iii) To carry on any other trade or business whatever which can in the opinion of the Board of Directors be advantageously carried on in connection with or ancillary to any of the businesses of the Company. (b) To purchase or by any other means acquire and take options over any property whatever, and any rights or privileges of any kind over or in respect of any property. (c) To apply for, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under or grant licences or privileges in respect of the same, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. (d) To acquire or undertake the whole or any part of the business, goodwill, and assets of any person, firm, or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into partnership or into any arrangement for sharing profits, or for co-operation, or for mutual assistance with any such person, firm or company, or for subsidising or otherwise assisting any such person, firm or company, and to give or accept, by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain, or sell, mortgage and deal with any shares, debentures, debenture stock or securities so received. (e) To improve, manage, construct, repair, develop, exchange, let on lease or otherwise, mortgage, charge, sell, dispose of, turn to account, grant licences, options, rights and privileges in respect of, or otherwise deal with all or any part of the property and rights of the Company. (f) To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined and to hold or otherwise deal with any investments made. (g) To lend and advance money or give credit on any terms and with or without security to any person, firm or company (including without prejudice to the generality of the foregoing any holding company, subsidiary or fellow subsidiary of, or any other company associated in any way with, the Company), to enter into guarantees, contracts of indemnity and suretyships of all kinds, to receive money on deposit or loan upon any terms, and to secure or guarantee in any manner and upon any terms the payment of any sum of money or the performance of any obligation by any person, firm or company (including without prejudice to the generality of the foregoing any such holding company, subsidiary, fellow subsidiary or associated company as aforesaid). (h) To borrow and raise money in any manner and to secure the repayment of any money borrowed, raised or owing by mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's property or assets (whether present or future), including its uncalled capital, and also by a similar mortgage, charge, standard security, lien or security to secure and guarantee the performance by the Company of any obligation or liability it may undertake or which may become binding on it. (i) To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, warrants, debentures, and other negotiable or transferable instruments. (j) To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect, or for effecting any modification of the Company's constitution, or for any other purpose which may seem calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company's interests. (k) To enter into any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which the Company may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges, and concessions. (l) To subscribe for, take, purchase, or otherwise acquire, hold, sell, deal with and dispose of, place and underwrite shares, stocks, debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any other company constituted or carrying on business in any part of the world, and debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any government or authority, municipal, local or otherwise, in any part of the world. (m) To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem desirable with respect to any business or operations of or generally with respect to any such company or companies. (n) To promote any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may appear likely to assist or benefit the Company or to enhance the value of any property or business of the Company, and to place or guarantee the placing of, underwrite, subscribe for, or otherwise acquire all or any part of the shares or securities of any such company as aforesaid. (o) To sell or otherwise dispose of the whole or any part of the business or property of the Company, either together or in portions, for such consideration as the Company may think fit, and in particular for shares, debentures, or securities of any company purchasing the same. (p) To act as agents or brokers and as trustees for any person, firm or company, and to undertake and perform sub-contracts. (q) To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise as may be thought expedient. (r) To distribute among the Members of the Company in kind any property of the Company of whatever nature. (s) To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling, or guaranteeing the subscription of any shares or other securities of the Company. (t) To support and subscribe to any charitable or public object and to support and subscribe to any institution, society, or club which may be for the benefit of the Company or its Directors or employees, or may be connected with any town or place where the Company carries on business; to give or award pensions, annuities, gratuities, and superannuation or other allowances or benefits or charitable aid and generally to provide advantages, facilities and services for any persons who are or have been Directors of, or who are or have been employed by, or who are serving or have served the Company, or any company which is a subsidiary of the Company or the holding company of the Company or a fellow subsidiary of the Company or the predecessors in business of the Company or of any such subsidiary, holding or fellow subsidiary company and to the wives, widows, children and other relatives and dependants of such persons; to make payments towards insurance including insurance for any Director, officer or Auditor against any liability as is referred to in Section 310(1) of the Act; and to set up, establish, support and maintain superannuation and other funds or schemes (whether contributory or non-contributory) for the benefit of any of such persons and of their wives, widows, children and other relatives and dependants; and to set up, establish, support and maintain profit sharing or share purchase schemes for the benefit of any of the employees of the Company or of any such subsidiary, holding or fellow subsidiary company and to lend money to any such employees or to trustees on their behalf to enable any such purchase schemes to be established or maintained. (u) Subject to and in accordance with a due compliance with the provisions of Sections 155 to 158 (inclusive) of the Act (if and so far as such provisions shall be applicable), to give, whether directly or indirectly, any kind of financial assistance (as defined in Section 152(1)(a) of the Act) for any such purpose as is specified in Section 151(1) and/or Section 151(2) of the Act. (v) To procure the Company to be registered or recognised in any part of the world. (w) To cease carrying on or to wind up any business or activity of the Company, and to cancel any registration of, and to wind up or procure the dissolution of the Company in any state or territory. (x) To do all or any of the things or matters aforesaid in any part of the world and either as principals, agents, contractors or otherwise, and by or through agents, brokers, sub-contractors or otherwise and either alone or in conjunction with others. (y) To do all such other things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. AND so that:- (1) None of the objects set forth in any sub-clause of this Clause shall be restrictively construed but the widest interpretation shall be given to each such object, and none of such objects shall, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause, or by reference to or inference from the terms of any other sub-clause of this Clause, or by reference to or inference from the name of the Company. (2) None of the sub-clauses of this Clause and none of the objects therein specified shall be deemed subsidiary or ancillary to any of the objects specified in any other such sub-clause, and the Company shall have as full a power to exercise each and every one of the objects specified in each sub-clause of this Clause as though each such sub-clause contained the objects of a separate Company. (3) The word "company" in this Clause, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere. (4) In this Clause the expression "the Act" means the Companies Act 1985, but so that any reference in this Clause to any provision of the Act shall be deemed to include a reference to any statutory modification or re-enactment of that provision for the time being in force. 4. The liability of the Members is limited. 5. The Company's share capital is(pound)1,000 divided into 1,000 shares of(pound)1 each. WE, the subscribers to this Memorandum of Association, wish to be formed into a Company pursuant to this Memorandum; and we agree to take the number of shares shown opposite our respective names. - ----------------------------------------------------------------------------- Names and addresses of Subscribers Number of shares taken by each Subscriber - ----------------------------------------------------------------------------- 1. For and on behalf of Instant Companies Limited - One 1 Mitchell Lane Bristol BS1 6BU 1 For and on behalf of - One Swift Incorporations Limited 1 Mitchell Lane Bristol BS1 6BU ----------------- Total shares taken - Two - -------------------------------------------------------------------------- Dated this 1st day of July, 1997 Witness to the above Signatures:- Mark Anderson 1 Mitchell Lane Bristol BS1 6BU THE COMPANIES ACTS 1985 to 1989 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION OF Cinergy Global Power Services Limited PRELIMINARY 1. (a) The Regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 (SI 1985 No. 805) as amended by the Companies (Tables A to F) (Amendment) Regulations 1985 (SI 1985 No. 1052) (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied hereby and such Regulations (save as so excluded or varied) and the Articles hereinafter contained shall be the regulations of the Company. (b) In these Articles the expression "the Act" means the Companies Act 1985, but so that any reference in these Articles to any provision of the Act shall be deemed to include a reference to any statutory modification or re-enactment of that provision for the time being in force. ALLOTMENT OF SHARES 2. (a) Shares which are comprised in the authorised but unissued share capital of the Company shall be under the control of the Directors who may (subject to Section 80 of the Act and to paragraph (c) below) allot, grant options over or otherwise dispose of the same, to such persons, on such terms and in such manner as they think fit. (b) In accordance with Section 91(1) of the Act Sections 89(1) and 90(1) to (6) (inclusive) of the Act shall not apply to the Company. (c) The Directors are generally and unconditionally authorised for the purposes of Section 80 of the Act, to exercise any power of the Company to allot and grant rights to subscribe for or convert securities into shares of the Company up to the amount of the authorised but unissued share capital with which the Company is incorporated at any time or times during the period of five years from the date of incorporation and the Directors may, after that period, allot any shares or grant any such rights under this authority in pursuance of an offer or agreement so to do made by the Company within that period. The authority hereby given may at any time (subject to the said Section 80) be renewed, revoked or varied by Ordinary Resolution of the Company in General Meeting. SHARES 3. The lien conferred by Clause 8 in Table A shall attach also to fully paid-up shares, and the Company shall also have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company. Clause 8 in Table A shall be modified accordingly. 4. The liability of any Member in default in respect of a call shall be increased by the addition at the end of the first sentence of Clause 18 in Table A of the words "and all expenses that may have been incurred by the Company by reason of such non-payment". GENERAL MEETINGS AND RESOLUTIONS 5. (a) Every notice convening a General Meeting shall comply with the provisions of Section 372(3) of the Act as to giving information to Members in regard to their right to appoint proxies; and notices of and other communications relating to any General Meeting which any Member is entitled to receive shall be sent to the Directors and to the Auditors for the time being of the Company. (b) Clause 37 in Table A shall be read and construed as if the last sentence were omitted therefrom. (c) No business shall be transacted at any General Meeting unless a quorum is present. Subject to paragraph (d) below two persons entitled to vote upon the business to be transacted, each being a Member or a proxy for a Member or a duly authorised representative of a corporation, shall be a quorum. (d) If and for so long as the Company has only one Member, that Member present in person or by proxy or if that Member is a corporation by a duly authorised representative shall be a quorum. (e) If a quorum is not present within half an hour from the time appointed for a General Meeting the General Meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the Directors may determine; and if at the adjourned General Meeting a quorum is not present within half an hour from the time appointed therefor such adjourned General Meeting shall be dissolved. (f) Clauses 40 and 41 in Table A shall not apply to the Company. 6. (a) If and for so long as the Company has only one Member and that Member takes any decision which is required to be taken in General Meeting or by means of a written resolution, that decision shall be as valid and effectual as if agreed by the Company in General Meeting save that this paragraph shall not apply to resolutions passed pursuant to Sections 303 and 391 of the Act. (b) Any decision taken by a sole Member pursuant to paragraph (a) above shall be recorded in writing and delivered by that Member to the Company for entry in the Company's Minute Book. 7. Clause 62 in Table A shall be read and construed as if the words "within the United Kingdom" were omitted therefrom. APPOINTMENT OF DIRECTORS 8. (a) Clause 64 in Table A shall not apply to the Company. (b) The maximum number and minimum number respectively of the Directors may be determined from time to time by Ordinary Resolution in General Meeting of the Company. Subject to and in default of any such determination there shall be no maximum number of Directors and the minimum number of Directors shall be one. Whensoever the minimum number of the Directors shall be one, a sole Director shall have authority to exercise all the powers and discretions by Table A and by these Articles expressed to be vested in the Directors generally, and Clause 89 in Table A shall be modified accordingly. (c) The Directors shall not be required to retire by rotation and Clauses 73 to 80 (inclusive) in Table A shall not apply to the Company. (d) No person shall be appointed a Director at any General Meeting unless either:- (i) he is recommended by the Directors; or (ii) not less than fourteen nor more than thirty-five clear days before the date appointed for the General Meeting, notice signed by a Member qualified to vote at the General Meeting has been given to the Company of the intention to propose that person for appointment, together with notice signed by that person of his willingness to be appointed. (e) Subject to paragraph (d) above, the Company may by Ordinary Resolution in General Meeting appoint any person who is willing to act to be a Director, either to fill a vacancy or as an additional Director. (f) The Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number determined in accordance with paragraph (b) above as the maximum number of Directors and for the time being in force. (g) In any case where as the result of the death of a sole Member of the Company the Company has no Members and no Directors the personal representatives of such deceased Member shall have the right by notice in writing to appoint a person to be a Director of the Company and such appointment shall be as effective as if made by the Company in General Meeting pursuant to paragraph (e) of this Article. BORROWING POWERS 9. The Directors may exercise all the powers of the Company to borrow money without limit as to amount and upon such terms and in such manner as they think fit, and subject (in the case of any security convertible into shares) to Section 80 of the Act to grant any mortgage, charge or standard security over its undertaking, property and uncalled capital, or any part thereof, and to issue debentures, debenture stock, and other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. ALTERNATE DIRECTORS 10. (a) An alternate Director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct, and the first sentence of Clause 66 in Table A shall be modified accordingly. (b) A Director, or any such other person as is mentioned in Clause 65 in Table A, may act as an alternate Director to represent more than one Director, and an alternate Director shall be entitled at any meeting of the Directors or of any committee of the Directors to one vote for every Director whom he represents in addition to his own vote (if any) as a Director, but he shall count as only one for the purpose of determining whether a quorum is present. (c) Clause 66 in Table A shall be read and construed as if the last sentence were omitted therefrom. GRATUITIES AND PENSIONS 11. (a) The Directors may exercise the powers of the Company conferred by Clause 3(t) of the Memorandum of Association of the Company and shall be entitled to retain any benefits received by them or any of them by reason of the exercise of any such powers. (b) Clause 87 in Table A shall not apply to the Company. PROCEEDINGS OF DIRECTORS 12. (a) Clause 88 in Table A shall be read and construed as if the third sentence were omitted therefrom. (b) A Director may vote, at any meeting of the Directors or of any committee of the Directors, on any resolution, notwithstanding that it in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever, and if he shall vote on any such resolution as aforesaid his vote shall be counted; and in relation to any such resolution as aforesaid he shall (whether or not he shall vote on the same) be taken into account in calculating the quorum present at the meeting. (c) Clauses 94 to 97 (inclusive) in Table A shall not apply to the Company. THE SEAL 13. (a) If the Company has a seal it shall only be used with the authority of the Directors or of a committee of Directors. The Directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined it shall be signed by a Director and by the Secretary or second Director. The obligation under Clause 6 in Table A relating to the sealing of share certificates shall apply only if the Company has a seal. Clause 101 in Table A shall not apply to the Company. (b) The Company may exercise the powers conferred by Section 39 of the Act with regard to having an official seal for use abroad, and such powers shall be vested in the Directors. NOTICES 14. (a) A notice may be given by the Company to any Member or other persons entitled to a share in consequence of the death or bankruptcy of a Member by post or by telegraphic or telex or facsimile communication. Clauses 112 and 116 in Table A shall be modified accordingly. (b) Clause 112 in Table A shall be read and construed as if the last sentence were omitted therefrom. (c) A notice given by post shall be deemed to be given at the expiration of 96 hours after the envelope containing it was posted and a notice given by telegraphic or telex or facsimile communication shall be deemed to be given at the expiration of 24 hours after despatch of the communication. Clause 115 in Table A shall be modified accordingly. (d) Clause 116 in Table A shall be read and construed as if the words "within the United Kingdom" were omitted therefrom. INDEMNITY 15. (a) Every Director or other officer or Auditor of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, or in connection with any application under Section 144 or Section 727 of the Act in which relief is granted to him by the Court, and no Director or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the execution of the duties of his office or in relation thereto. But this Article shall only have effect in so far as its provisions are not avoided by Section 310 of the Act. (b) The Directors shall have power to purchase and maintain for any Director, officer or Auditor of the Company insurance against any such liability as is referred to in Section 310(1) of the Act. (c) Clause 118 in Table A shall not apply to the Company. TRANSFER OF SHARES 16. The Directors may, in their absolute discretion and without assigning any reason therefor, decline to register the transfer of a share, whether or not it is a fully paid share, and the first sentence of Clause 24 in Table A shall not apply to the Company. - ----------------------------------------------------------------------------- Names and addresses of Subscribers - ----------------------------------------------------------------------------- 1. For and on behalf of Instant Companies Limited 1 Mitchell Lane Bristol BS1 6BU 2. For and on behalf of Swift Incorporations Limited 1 Mitchell Lane Bristol BS1 6BU - -------------------------------------------------------------------------- Dated this 1st day of July, 1997 Witness to the above Signatures:- Mark Anderson 1 Mitchell Lane Bristol BS1 6BU EX-99 32 CINERGY GLOBAL PWR. LTD. MEMO. & ART. OF ASSOC. Company No: 3504825 The Companies Act 1985 ------------------------------- PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM - and - ARTICLES OF ASSOCIATION of CINERGY GLOBAL POWER LIMITED* -------------------------------------------------- Incorporated on 5 February 1998 -------------------------------------------------- * The name of the Company was changed from Foray 1080 Limited to Cinergy Global Power Limited recorded by Certificate of Incorporation on Change of Name dated 3 April 1998. The Companies Act 1985 ------------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM OF ASSOCIATION of CINERGY GLOBAL POWER LIMITED 1. The Company's name is "Cinergy Global Power Limited".* 2. The Company's registered office is to be situated in England and Wales. 3. The Company's objects are:- 3.1 To carry out all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all kinds of commercial, industrial, trading and financial operations and enterprises; to carry on all or any of the businesses of marketing and business consultants, advertising agents and contractors, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds; and to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in, and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. - -------- * The name of the Company was changed from Foray 1080 Limited to Cinergy Global Power Limited recorded by Certificate of Incorporation on Change of Name dated 3 April 1998. 3.2 To carry on any other trade or business whatever which can in the opinion of the board of directors be advantageously carried on in connection with or as being ancillary to any of the businesses or activities of the Company. 3.3 To purchase or by any other means acquire and take options over any property whatever, and any rights or privileges of any kind over or in respect of any property. 3.4 To apply for, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under of grant licences or privileges in respect of the same, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. 3.5 To acquire and undertake the whole or any part of the business, goodwill and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on and as part of the consideration for any such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into partnership or into any arrangement for sharing profits, or for cooperation, or for mutual assistance with any such person, firm or company, or for subsidising or otherwise assisting any such person, firm or company, and to give or accept, by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain, or sell, mortgage and deal with any shares, debentures, debenture stock or securities so received. 3.6 To improve, manage, construct, repair, develop, exchange, let on lease or otherwise, mortgage, charge, sell, dispose of, turn to account, grant licences, options, rights and privileges in respect of, or otherwise deal with all or any part of the property and rights of the Company. 3.7 To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined by the board of directors and to hold or otherwise deal with any investments made. 3.8 To lend and advance money or give credit on any terms and with or without security to any person, firm or company (including without prejudice to the generality of the foregoing any holding company, subsidiary or fellow subsidiary of, or any other company associated in any way with, the Company) and to receive money on deposit or loan upon any terms. 3.9 To guarantee or otherwise support or secure, either with or without the Company receiving any consideration or advantage and whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property, assets, rights and revenues (present and future) and uncalled capital of the Company, or by both such methods or by any other means whatever, the performance of the liabilities and obligations of and the repayment or payment of any moneys whatever by any person, firm or company, including (but not limited to):- 3.9.1any liabilities and obligations whatever of, and the repayment or payment of any moneys whatever by, any company which is for the time being or is likely to become the Company's holding company or a subsidiary of the Company or another subsidiary of the Company's holding company or otherwise associated with the Company in business; and 3.9.2any liabilities and obligations incurred in connection with or for the purpose of the acquisition of shares in the Company or in any company which is for the time being the Company's holding company in so far as the giving of any such guarantee or other support or security is not prohibited by law; and 3.9.3the repayment or payment of the principal amounts of, and premiums, interest and dividends on, any borrowings and securities. 3.10 To borrow and raise money in any manner and to secure the repayment of any money borrowed, raised or owing by mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's property or assets (whether present or future), including its uncalled capital, and also by a similar mortgage, charge, standard security, lien or security to secure and guarantee the performance by the Company of any obligation or liability it may undertake or which may become binding on it. 3.11 To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, warrants, debentures, and other negotiable or transferable instruments. 3.12 To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect, or for effecting any modification of the Company's constitution, or for any other purpose which may seem to the board of directors to be calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem to such board to be calculated directly or indirectly to prejudice the Company's interests. 3.13 To enter into any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem to the board of directors to be conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which such board may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges and concessions. 3.14 To subscribe for, take, purchase, or otherwise acquire, hold, sell, deal with and dispose of, place and underwrite shares, stocks, debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any other company constituted or carrying on business in any part of the world, and debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any government or authority, municipal, local or otherwise, in any part of the world. 3.15 To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem to the board of directors to be desirable with respect to any business or operations of or generally with respect to any such company or companies. 3.16 To promote any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may appear to the board of directors to be likely to assist or benefit the Company or to enhance the value of any property or business of the Company, and to place or guarantee the placing of, underwrite, subscribe for, or otherwise acquire all or any part of the shares or securities of any such company as aforesaid. 3.17 To sell or otherwise dispose of the whole or any part of the business or property of the Company, either together or in portions, for such consideration as the board of directors may think fit, and in particular (but without limitation) for shares, debentures, or securities of any company purchasing the same. 3.18 To act as agent or broker and as trustee or nominee for any person, firm or company, and to undertake and perform sub-contracts. 3.19 To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise. 3.20 To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling, or guaranteeing the subscription of any shares or other securities of the Company. 3.21 To provide, and to establish and maintain or concur in establishing and maintaining trusts, funds, schemes, clubs or other arrangements (whether contributory or non-contributory) with a view to providing: 3.21.1 pensions, insurances, allowances, gratuities, bonuses and incentives and benefits of every description including, but not limited to, retirement benefits schemes and/or life assurance schemes; and 3.21.2 employees' share schemes (within the meaning of section 743 of the Companies Act 1985) including, but not limited to, profit sharing, share option and share purchase schemes to or for the benefit of officers, ex-officers, employees or ex-employees of the Company or its predecessors in business or of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or of any predecessor in business of any such company or the dependants or relatives of any such persons; and to provide or lend money or provide other financial assistance in accordance with or for the purposes of such arrangements. 3.22 To support (whether by direct subscription, the giving of guarantees or otherwise) any charitable, benevolent or educational fund, institution or organisation, or any event or purpose of a public or general nature, the support of which will or may, in the opinion of the board of directors, directly or indirectly benefit, or is calculated so to benefit, the Company or its business or activities or its officers, ex-officers, employees or ex-employees or the business, activities or its officers, ex-officers, employees or ex-employees of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or the officers, ex-officers, employees or ex-employees of any predecessor in business of the Company or any such company as aforesaid. 3.23 Subject to and in accordance with a due compliance with the provisions of sections 155 to 158 (inclusive) of the Act (if and so far as such provisions shall be applicable), to give, whether directly or indirectly, any kind of financial assistance (as defined in section 152(1)(a) of the Act) for any such purpose as is specified in section 151(1) and/or section 151(2) of the Act. 3.24 To purchase and maintain, for the benefit of any director (including an alternate director), officer or auditor of the Company or of any company which is the holding company, a subsidiary, or a fellow subsidiary of the Company, insurance against any liability as is referred to in section 310(1) of the Act and, subject to the provisions of the Act, against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director (including an alternate director), officer or auditor and, subject also to the provisions of the Act, to indemnify any such person out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto and, without prejudice to the foregoing, to grant any such indemnity after the occurrence of the event giving rise to any such liability. 3.25 To distribute among the members of the Company in kind any property of the Company of whatever nature. 3.26 To procure the Company to be registered or recognised in any part of the world. 3.27 To do all or any of the things or matters aforesaid in any part of the world and either as principal, agent, contractor or otherwise, and by or through agents, brokers, sub-contractors or otherwise and either alone or in conjunction with others. 3.28 To do all such other things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. AND so that:- 3.28.1 none of the objects set out in any of the preceding sub-clauses of this Clause 3 shall be restrictively construed but the widest interpretation shall be given to each such object, and none of such objects shall, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause, or by reference to or inference from the terms of any other sub-clause of this Clause 3, or by reference to or inference from the name of the Company; 3.28.2 none of the preceding sub-clauses of this Clause 3 and none of the objects therein specified shall be deemed subsidiary or ancillary to any of the objects specified in any other such sub-clause, and the Company shall have as full a power to exercise each and every one of the objects specified in each sub-clause of this Clause 3 as though each sub-clause contained the objects of a separate company; 3.28.3 the word "company" in this Clause 3, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere; 3.28.4 in this Clause 3 the expressions "holding company" and "subsidiary" shall have the meanings given to them respectively by section 736 of the Act and the expression "subsidiaries" shall include a subsidiary undertaking as defined by section 258 of the Act; and 3.28.5 in this Clause 3 the expression "the Act" means the Companies Act 1985, but so that any reference in this Clause 3 to any provision of the Act shall be deemed to include a reference to any statutory modification or re-enactment of that provision at the time this Clause 3 takes effect. The liability of the members is limited. The Company's share capital is (pound)1,000 divided into 1,000 shares of (pound)1 each. We, the several persons whose names, addresses, and descriptions are subscribed, are desirous of being formed into a company in pursuance of this Memorandum of Association and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. Names, addresses and Number of shares taken descriptions of Subscribers by the/each Subscriber JACQUELINE FISHER One 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND One 29 Highbrow Harborne Birmingham B17 9EW Solicitor DATED: 27th January 1998 WITNESS to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary The Companies Act 1985 ------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------ ARTICLES OF ASSOCIATION of CINERGY GLOBAL POWER LIMITED* 1. Preliminary The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded to varied) and these Articles shall be the regulations of the Company. 2. Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" the Companies Act 1985 including any statutory modification or re- enactment thereof for the time being in force. "these Articles" these Articles of Association, whether as originally adopted or as from time to time altered by special resolution. "clear days" in relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect. - -------- * The name of the Company was changed from Foray 1080 Limited to Cinergy Global Power Limited recorded by Certificate of Incorporation on Change of Name dated 3 April 1998. "the directors" the directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company. "executed" includes any mode of execution. "the holder" in relation to shares means the member whose name is entered in the register of members as the holder of the shares. "office" the registered office of the Company. "seal" the common seal of the Company (if any). "secretary" the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary. "share" includes any interest in a share. "the United Kingdom" Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. 3. Share Capital 3.1 The authorised share capital of the Company at the time of incorporation of the Company is(pound)1,000 divided into 1,000 ordinary shares of(pound)1.00 each. 3.2 No shares comprised in the authorised share capital of the Company from time to time shall be issued without the consent in writing of the holder or holders (in aggregate) of a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) nor shall any share be issued at a discount or otherwise be issued in breach of the provisions of these Articles or of the Act. 3.3 Regulation 4 of Table A and, in accordance with section 91(1) of the Act, Sections 89(1) and 90(1) to (6) (inclusive) of the Act shall not apply to the Company. 4. Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company. Regulation 8 of Table A shall be modified accordingly. 5. Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 6. Transfer of shares The first sentence in regulation 24 of Table A shall not apply to the Company. The words "They may also" at the beginning of the second sentence of that regulation shall be replaced by the words "The directors may". 7. General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 8. Notice of general meetings 8.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in accordance with section 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 8.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 8.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 9. Proceedings at general meetings 9.1 The words, "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 9.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the member or members present in person or by proxy or (being a body corporate) by repre to vote upon the business to be transacted shall constitute a quorum and shall have power to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. Regulation 41 of Table A shall not apply to the Company. 10. Votes of members 10.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have of which he is the holder. 10.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 10.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 11. Number of directors 11.1 Regulation 64 of Table A shall not apply to the Company. 11.2 The maximum number and minimum number respectively of the directors may be determined from time to time by ordinary resolution. Subject to and in default of any such determination there shall be no maximum number of directors and the minimum number of directors shall be one. 12. Alternate directors 12.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present, and generally to perform all the functions of his appointor at such meeting as a director i alternate director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 12.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of reg shall not apply to the Company. 12.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 12.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 13. Appointment and retirement of directors 13.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 13.2 A member or members holding a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) shall have power at any time, and from time to time, to appoint any person to be a director, either as an additional director (provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force) or to fill a vacancy and to remove f howsoever appointed. Any such appointment or removal shall be made by notice in writing to the Company signed by the member or members making the same or, in the case of a member being a corporate body, signed by one of its directors or duly authorised officers or by its duly authorised attorney and shall take effect upon lodgement of such notice at the office. 13.3 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 13.4 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force. 14. Disqualification and removal of directors The office of a director shall be vacated if:- 14.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 14.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 14.3 he is, or may be, suffering from mental disorder and either:- 14.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960, or 14.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 14.4 he resigns his office by notice to the Company; or 14.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of the directors held during that period and the directors resolve that his office be vacated; or 14.6 he is removed from office as a director pursuant to Article 13.2; and regulation 81 of Table A shall not apply to the Company. 15. Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the Directors shall be entitled to retain any benefits by them or any of them by reason of the exercise of any such powers. 16. Proceedings of the directors 16.1 Whensoever the minimum number of the directors shall be one pursuant to the provisions of Article 11.2, a sole director shall have authority to exercise all the powers and discretions which are expressed by Table A and by these Articles to be vested in the directors generally and regulations 89 and 90 of Table A shall be modified accordingly. 16.2 Subject to the provisions of the Act, and provided that he has disclosed to the directors the nature and extent of any interest of his, a director notwithstanding his office:- 16.2.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 16.2.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 16.2.3 may or any firm or company of which he is a member or director may act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 16.2.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 16.2.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 16.2.1 to 16.2.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 16.3 For the purposes of Article 16.2:- 16.3.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 16.3.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 16.3.3 an interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when the Company was incorporated) connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 16.4 Any director (including an alternate director) may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counte accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 16.5 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom" the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 16.6 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 17. The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 18. Notices 18.1 In regulation 112 of Table A, the words "by telex to a telex number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 18.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by telex receipt of the appropriate answerback shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time following receipt of the appropriate answerback. Regulation 115 of Table A shall not apply to the Company. 18.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirm notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 19. Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 20. Indemnity 20.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgement is given in his favour o acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 20.2 The directors shall have power to purchase and maintain at the expense of the Company for the benefit of any director (including an alternate director), officer or auditor of the Company insurance against any such liability as is referred to in section 310(1) of the Act and subject to the provisions of the Act against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done an alternate director), officer or auditor. 20.3 The directors may authorise directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred to in Article 20.2. Names, addresses and descriptions of Subscribers JACQUELINE FISHER 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND 29 Highbrow Harborne Birmingham B17 9EW Solicitor Dated: 27th January 1998 Witness to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary EX-99 33 CIN GLOBAL PWR. (UK) LTD. MEMO. & ART. OF ASSOC. Certificate No: 3504828 The Companies Act 1985 ------------------------------- PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM - and - ARTICLES OF ASSOCIATION of CINERGY GLOBAL POWER (UK) LIMITED* -------------------------------------------------- Incorporated on 5 February 1998 -------------------------------------------------- * The name of the Company was changed from Foray 1081 Limited to Cinergy Global Power (UK) Limited recorded by Certificate of Incorporation on Change of Name dated 3 April 1998. The Companies Act 1985 ------------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM OF ASSOCIATION of CINERGY GLOBAL POWER (UK) LIMITED 1. The Company's name is "Cinergy Global Power (UK) Limited".* 2. The Company's registered office is to be situated in England and Wales. 3. The Company's objects are:- 3.1 To carry out all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all kinds of commercial, industrial, trading and financial operations and enterprises; to carry on all or any of the businesses of marketing and business consultants, advertising agents and contractors, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds; and to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in, and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. 3.2 To carry on any other trade or business whatever which can in the opinion of the board of directors be advantageously carried on in connection with or as being ancillary to any of the businesses or activities of the Company. 3.3 To purchase or by any other means acquire and take options over any property whatever, and any rights or privileges of any kind over or in respect of any property. 3.4 To apply for, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under of grant licences or privileges in respect of the same, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. 3.5 To acquire and undertake the whole or any part of the business, goodwill and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on and as part of the consideration for any such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into partnership or into any arrangement for sharing profits, or for cooperation, or for mutual assistance with any such person, firm or company, or for subsidising or otherwise assisting any such person, firm or company, and to give or accept, by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain, or sell, mortgage and deal with any shares, debentures, debenture stock or securities so received. 3.6 To improve, manage, construct, repair, develop, exchange, let on lease or otherwise, mortgage, charge, sell, dispose of, turn to account, grant licences, options, rights and privileges in respect of, or otherwise deal with all or any part of the property and rights of the Company. 3.7 To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined by the board of directors and to hold or otherwise deal with any investments made. 3.8 To lend and advance money or give credit on any terms and with or without security to any person, firm or company (including without prejudice to the generality of the foregoing any holding company, subsidiary or fellow subsidiary of, or any other company associated in any way with, the Company) and to receive money on deposit or loan upon any terms. 3.9 To guarantee or otherwise support or secure, either with or without the Company receiving any consideration or advantage and whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property, assets, rights and revenues (present and future) and uncalled capital of the Company, or by both such methods or by any other means whatever, the performance of the liabilities and obligations of and the repayment or payment of any moneys whatever by any person, firm or company, including (but not limited to):- 3.9.1any liabilities and obligations whatever of, and the repayment or payment of any moneys whatever by, any company which is for the time being or is likely to become the Company's holding company or a subsidiary of the Company or another subsidiary of the Company's holding company or otherwise associated with the Company in business; and 3.9.2any liabilities and obligations incurred in connection with or for the purpose of the acquisition of shares in the Company or in any company which is for the time being the Company's holding company in so far as the giving of any such guarantee or other support or security is not prohibited by law; and 3.9.3the repayment or payment of the principal amounts of, and premiums, interest and dividends on, any borrowings and securities. 3.10 To borrow and raise money in any manner and to secure the repayment of any money borrowed, raised or owing by mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's property or assets (whether present or future), including its uncalled capital, and also by a similar mortgage, charge, standard security, lien or security to secure and guarantee the performance by the Company of any obligation or liability it may undertake or which may become binding on it. 3.11 To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, warrants, debentures, and other negotiable or transferable instruments. 3.12 To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect, or for effecting any modification of the Company's constitution, or for any other purpose which may seem to the board of directors to be calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem to such board to be calculated directly or indirectly to prejudice the Company's interests. 3.13 To enter into any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem to the board of directors to be conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which such board may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges and concessions. 3.14 To subscribe for, take, purchase, or otherwise acquire, hold, sell, deal with and dispose of, place and underwrite shares, stocks, debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any other company constituted or carrying on business in any part of the world, and debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any government or authority, municipal, local or otherwise, in any part of the world. 3.15 To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem to the board of directors to be desirable with respect to any business or operations of or generally with respect to any such company or companies. 3.16 To promote any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may appear to the board of directors to be likely to assist or benefit the Company or to enhance the value of any property or business of the Company, and to place or guarantee the placing of, underwrite, subscribe for, or otherwise acquire all or any part of the shares or securities of any such company as aforesaid. 3.17 To sell or otherwise dispose of the whole or any part of the business or property of the Company, either together or in portions, for such consideration as the board of directors may think fit, and in particular (but without limitation) for shares, debentures, or securities of any company purchasing the same. 3.18 To act as agent or broker and as trustee or nominee for any person, firm or company, and to undertake and perform sub-contracts. 3.19 To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise. 3.20 To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling, or guaranteeing the subscription of any shares or other securities of the Company. 3.21 To provide, and to establish and maintain or concur in establishing and maintaining trusts, funds, schemes, clubs or other arrangements (whether contributory or non-contributory) with a view to providing: 3.21.1 pensions, insurances, allowances, gratuities, bonuses and incentives and benefits of every description including, but not limited to, retirement benefits schemes and/or life assurance schemes; and 3.21.2 employees' share schemes (within the meaning of section 743 of the Companies Act 1985) including, but not limited to, profit sharing, share option and share purchase schemes to or for the benefit of officers, ex-officers, employees or ex-employees of the Company or its predecessors in business or of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or of any predecessor in business of any such company or the dependants or relatives of any such persons; and to provide or lend money or provide other financial assistance in accordance with or for the purposes of such arrangements. 3.22 To support (whether by direct subscription, the giving of guarantees or otherwise) any charitable, benevolent or educational fund, institution or organisation, or any event or purpose of a public or general nature, the support of which will or may, in the opinion of the board of directors, directly or indirectly benefit, or is calculated so to benefit, the Company or its business or activities or its officers, ex-officers, employees or ex-employees or the business, activities or its officers, ex-officers, employees or ex-employees of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or the officers, ex-officers, employees or ex-employees of any predecessor in business of the Company or any such company as aforesaid. 3.23 Subject to and in accordance with a due compliance with the provisions of sections 155 to 158 (inclusive) of the Act (if and so far as such provisions shall be applicable), to give, whether directly or indirectly, any kind of financial assistance (as defined in section 152(1)(a) of the Act) for any such purpose as is specified in section 151(1) and/or section 151(2) of the Act. 3.24 To purchase and maintain, for the benefit of any director (including an alternate director), officer or auditor of the Company or of any company which is the holding company, a subsidiary, or a fellow subsidiary of the Company, insurance against any liability as is referred to in section 310(1) of the Act and, subject to the provisions of the Act, against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director (including an alternate director), officer or auditor and, subject also to the provisions of the Act, to indemnify any such person out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto and, without prejudice to the foregoing, to grant any such indemnity after the occurrence of the event giving rise to any such liability. 3.25 To distribute among the members of the Company in kind any property of the Company of whatever nature. 3.26 To procure the Company to be registered or recognised in any part of the world. 3.27 To do all or any of the things or matters aforesaid in any part of the world and either as principal, agent, contractor or otherwise, and by or through agents, brokers, sub-contractors or otherwise and either alone or in conjunction with others. 3.28 To do all such other things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. AND so that:- 3.28.1 none of the objects set out in any of the preceding sub-clauses of this Clause 3 shall be restrictively construed but the widest interpretation shall be given to each such object, and none of such objects shall, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause, or by reference to or inference from the terms of any other sub-clause of this Clause 3, or by reference to or inference from the name of the Company; 3.28.2 none of the preceding sub-clauses of this Clause 3 and none of the objects therein specified shall be deemed subsidiary or ancillary to any of the objects specified in any other such sub-clause, and the Company shall have as full a power to exercise each and every one of the objects specified in each sub-clause of this Clause 3 as though each sub-clause contained the objects of a separate company; 3.28.3 the word "company" in this Clause 3, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere; 3.28.4 in this Clause 3 the expressions "holding company" and "subsidiary" shall have the meanings given to them respectively by section 736 of the Act and the expression "subsidiaries" shall include a subsidiary undertaking as defined by section 258 of the Act; and 3.28.5 in this Clause 3 the expression "the Act" means the Companies Act 1985, but so that any reference in this Clause 3 to any provision of the Act shall be deemed to include a reference to any statutory modification or re-enactment of that provision at the time this Clause 3 takes effect. 4. The liability of the members is limited. 5. The Company's share capital is (pound)1,000 divided into 1,000 shares of (pound)1 each. We, the several persons whose names, addresses, and descriptions are subscribed, are desirous of being formed into a company in pursuance of this Memorandum of Association and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. Names, addresses and descriptions of Number of shares taken Subscribers by the/each Subscriber JACQUELINE FISHER One 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND One 29 Highbrow Harborne Birmingham B17 9EW Solicitor DATED: 27th January 1998 WITNESS to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary The Companies Act 1985 ------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------ ARTICLES OF ASSOCIATION of CINERGY GLOBAL POWER (UK) LIMITED* 1. Preliminary The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded to varied) and these Articles shall be the regulations of the Company. 2. Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" the Companies Act 1985 including any statutory modification or re- enactment thereof for the time being in force. "these Articles" these Articles of Association, whether as originally adopted or as from time to time altered by special resolution. "clear days" in relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect. - -------- * The name of the Company was changed from Foray 1081 Limited to Cinergy Global Power (UK) Limited recorded by Certificate of Incorporation on Change of Name dated 3 April 1998. "the directors" the directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company. "executed" includes any mode of execution. "the holder" in relation to shares means the member whose name is entered in the register of members as the holder of the shares. "office" the registered office of the Company. "seal" the common seal of the Company (if any). "secretary" the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary. "share" includes any interest in a share. "the United Kingdom" Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. 3. Share Capital 3.1 The authorised share capital of the Company at the time of incorporation of the Company is(pound)1,000 divided into 1,000 ordinary shares of(pound)1.00 each. 3.2 No shares comprised in the authorised share capital of the Company from time to time shall be issued without the consent in writing of the holder or holders (in aggregate) of a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) nor shall any share be issued at a discount or otherwise be issued in breach of the provisions of these Articles or of the Act. 3.3 Regulation 4 of Table A and, in accordance with section 91(1) of the Act, Sections 89(1) and 90(1) to (6) (inclusive) of the Act shall not apply to the Company. 4. Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company. Regulation 8 of Table A shall be modified accordingly. 5. Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 6. Transfer of shares The first sentence in regulation 24 of Table A shall not apply to the Company. The words "They may also" at the beginning of the second sentence of that regulation shall be replaced by the words "The directors may". 7. General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 8. Notice of general meetings 8.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in acc 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 8.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 8.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 9. Proceedings at general meetings 9.1 The words, "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 9.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the member or members present in person or by proxy or (being a body corporate) by repre to vote upon the business to be transacted shall constitute a quorum and shall have power to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. Regulation 41 of Table A shall not apply to the Company. 10. Votes of members 10.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have of which he is the holder. 10.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 10.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 11. Number of directors 11.1 Regulation 64 of Table A shall not apply to the Company. 11.2 The maximum number and minimum number respectively of the directors may be determined from time to time by ordinary resolution. Subject to and in default of any such determination there shall be no maximum number of directors and the minimum number of directors shall be one. 12. Alternate directors 12.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present, and generally to perform all the functions of his appointor at such meeting as a director i alternate director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 12.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of reg shall not apply to the Company. 12.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 12.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 13. Appointment and retirement of directors 13.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 13.2 A member or members holding a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) shall have power at any time, and from time to time, to appoint any person to be a director, either as an additional director (provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force) or to fill a vacancy and to remove f howsoever appointed. Any such appointment or removal shall be made by notice in writing to the Company signed by the member or members making the same or, in the case of a member being a corporate body, signed by one of its directors or duly authorised officers or by its duly authorised attorney and shall take effect upon lodgement of such notice at the office. 13.3 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 13.4 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force. 14. Disqualification and removal of directors The office of a director shall be vacated if:- 14.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 14.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 14.3 he is, or may be, suffering from mental disorder and either:- 14.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960, or 14.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 14.4 he resigns his office by notice to the Company; or 14.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of the directors held during that period and the directors resolve that his office be vacated; or 14.6 he is removed from office as a director pursuant to Article 13.2; and regulation 81 of Table A shall not apply to the Company. 15. Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the Directors shall be entitled to retain any benefits by them or any of them by reason of the exercise of any such powers. 16. Proceedings of the directors 16.1 Whensoever the minimum number of the directors shall be one pursuant to the provisions of Article 11.2, a sole director shall have authority to exercise all the powers and discretions which are expressed by Table A and by these Articles to be vested in the directors generally and regulations 89 and 90 of Table A shall be modified accordingly. 16.2 Subject to the provisions of the Act, and provided that he has disclosed to the directors the nature and extent of any interest of his, a director notwithstanding his office:- 16.2.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 16.2.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 16.2.3 may or any firm or company of which he is a member or director may act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 16.2.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 16.2.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 16.2.1 to 16.2.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 16.3 For the purposes of Article 16.2:- 16.3.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 16.3.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 16.3.3 an interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when the Company was incorporated) connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 16.4 Any director (including an alternate director) may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counte accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 16.5 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom" the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 16.6 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 17. The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 18. Notices 18.1 In regulation 112 of Table A, the words "by telex to a telex number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 18.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by telex receipt of the appropriate answerback shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time following receipt of the appropriate answerback. Regulation 115 of Table A shall not apply to the Company. 18.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirm notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 19. Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 20. Indemnity 20.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgement is given in his favour o acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 20.2 The directors shall have power to purchase and maintain at the expense of the Company for the benefit of any director (including an alternate director), officer or auditor of the Company insurance against any such liability as is referred to in section 310(1) of the Act and subject to the provisions of the Act against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done an alternate director), officer or auditor. 20.3 The directors may authorise directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred to in Article 20.2. Names, addresses and descriptions of Subscribers JACQUELINE FISHER 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND 29 Highbrow Harborne Birmingham B17 9EW Solicitor Dated: 27th January 1998 Witness to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary EX-99 34 MPI INTERNATIONAL LIMITED MEMO. & ART. OF ASSOC. Company No: 3504983 The Companies Act 1985 ------------------------------- PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM - and - ARTICLES OF ASSOCIATION of MPI INTERNATIONAL LIMITED* -------------------------------------------------- Incorporated on 5 February 1998 -------------------------------------------------- * The name of the Company was changed (1) from Foray 1085 Limited to Cinergy Global Power Services Limited recorded by Certificate of Incorporation on Change of Name dated 8 April 1998, and (2) from Cinergy Global Power Services Limited to MPI International Limited recorded by Certificate of Incorporation on Change of Name dated 1 May 1998. The Companies Act 1985 ------------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------------ MEMORANDUM OF ASSOCIATION of MPI INTERNATIONAL LIMITED 1. The Company's name is "MPI International Limited".* 2. The Company's registered office is to be situated in England and Wales. 3. The Company's objects are:- 3.1 To carry out all or any of the businesses of general merchants and traders, cash and credit traders, manufacturers' agents and representatives, insurance brokers and consultants, estate and advertising agents, mortgage brokers, financial agents, advisers, managers and administrators, hire purchase and general financiers, brokers and agents, commission agents, importers and exporters, manufacturers, retailers, wholesalers, buyers, sellers, distributors and shippers of, and dealers in all products, goods, wares, merchandise and produce of every description, to participate in, undertake, perform and carry on all kinds of commercial, industrial, trading and financial operations and enterprises; to carry on all or any of the businesses of marketing and business consultants, advertising agents and contractors, general storekeepers, warehousemen, discount traders, mail order specialists, railway, shipping and forwarding agents, shippers, traders, capitalists and financiers either on the Company's own account or otherwise, printers and publishers; haulage and transport contractors, garage proprietors, operators, hirers and letters on hire of, and dealers in motor and other vehicles, craft, plant, machinery, tools and equipment of all kinds; and to purchase or otherwise acquire and take over any businesses or undertakings which may be deemed expedient, or to become interested in, and to carry on or dispose of, remove or put an end to the same or otherwise deal with any such businesses or undertakings as may be thought desirable. - -------- * The name of the Company was changed (1) from Foray 1085 Limited to Cinergy Global Power Services Limited recorded by Certificate of Incorporation on Change of Name dated 8 April 1998, and (2) from Cinergy Global Power Services Limited to MPI International Limited recorded by Certificate of Incorporation on Change of Name dated 1 May 1998. 3.2 To carry on any other trade or business whatever which can in the opinion of the board of directors be advantageously carried on in connection with or as being ancillary to any of the businesses or activities of the Company. 3.3 To purchase or by any other means acquire and take options over any property whatever, and any rights or privileges of any kind over or in respect of any property. 3.4 To apply for, register, purchase, or by other means acquire and protect, prolong and renew, whether in the United Kingdom or elsewhere any patents, patent rights, brevets d'invention, licences, secret processes, trade marks, designs, protections and concessions and to disclaim, alter, modify, use and turn to account and to manufacture under of grant licences or privileges in respect of the same, and to expend money in experimenting upon, testing and improving any patents, inventions or rights which the Company may acquire or propose to acquire. 3.5 To acquire and undertake the whole or any part of the business, goodwill and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which the Company is authorised to carry on and as part of the consideration for any such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into partnership or into any arrangement for sharing profits, or for cooperation, or for mutual assistance with any such person, firm or company, or for subsidising or otherwise assisting any such person, firm or company, and to give or accept, by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain, or sell, mortgage and deal with any shares, debentures, debenture stock or securities so received. 3.6 To improve, manage, construct, repair, develop, exchange, let on lease or otherwise, mortgage, charge, sell, dispose of, turn to account, grant licences, options, rights and privileges in respect of, or otherwise deal with all or any part of the property and rights of the Company. 3.7 To invest and deal with the moneys of the Company not immediately required in such manner as may from time to time be determined by the board of directors and to hold or otherwise deal with any investments made. 3.8 To lend and advance money or give credit on any terms and with or without security to any person, firm or company (including without prejudice to the generality of the foregoing any holding company, subsidiary or fellow subsidiary of, or any other company associated in any way with, the Company) and to receive money on deposit or loan upon any terms. 3.9 To guarantee or otherwise support or secure, either with or without the Company receiving any consideration or advantage and whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property, assets, rights and revenues (present and future) and uncalled capital of the Company, or by both such methods or by any other means whatever, the performance of the liabilities and obligations of and the repayment or payment of any moneys whatever by any person, firm or company, including (but not limited to):- 3.9.1any liabilities and obligations whatever of, and the repayment or payment of any moneys whatever by, any company which is for the time being or is likely to become the Company's holding company or a subsidiary of the Company or another subsidiary of the Company's holding company or otherwise associated with the Company in business; and 3.9.2any liabilities and obligations incurred in connection with or for the purpose of the acquisition of shares in the Company or in any company which is for the time being the Company's holding company in so far as the giving of any such guarantee or other support or security is not prohibited by law; and 3.9.3the repayment or payment of the principal amounts of, and premiums, interest and dividends on, any borrowings and securities. 3.10 To borrow and raise money in any manner and to secure the repayment of any money borrowed, raised or owing by mortgage, charge, standard security, lien or other security upon the whole or any part of the Company's property or assets (whether present or future), including its uncalled capital, and also by a similar mortgage, charge, standard security, lien or security to secure and guarantee the performance by the Company of any obligation or liability it may undertake or which may become binding on it. 3.11 To draw, make, accept, endorse, discount, negotiate, execute and issue cheques, bills of exchange, promissory notes, bills of lading, warrants, debentures, and other negotiable or transferable instruments. 3.12 To apply for, promote, and obtain any Act of Parliament, order, or licence of the Department of Trade or other authority for enabling the Company to carry any of its objects into effect, or for effecting any modification of the Company's constitution, or for any other purpose which may seem to the board of directors to be calculated directly or indirectly to promote the Company's interests, and to oppose any proceedings or applications which may seem to such board to be calculated directly or indirectly to prejudice the Company's interests. 3.13 To enter into any arrangements with any government or authority (supreme, municipal, local, or otherwise) that may seem to the board of directors to be conducive to the attainment of the Company's objects or any of them, and to obtain from any such government or authority any charters, decrees, rights, privileges or concessions which such board may think desirable and to carry out, exercise, and comply with any such charters, decrees, rights, privileges and concessions. 3.14 To subscribe for, take, purchase, or otherwise acquire, hold, sell, deal with and dispose of, place and underwrite shares, stocks, debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any other company constituted or carrying on business in any part of the world, and debentures, debenture stocks, bonds, obligations or securities issued or guaranteed by any government or authority, municipal, local or otherwise, in any part of the world. 3.15 To control, manage, finance, subsidise, co-ordinate or otherwise assist any company or companies in which the Company has a direct or indirect financial interest, to provide secretarial, administrative, technical, commercial and other services and facilities of all kinds for any such company or companies and to make payments by way of subvention or otherwise and any other arrangements which may seem to the board of directors to be desirable with respect to any business or operations of or generally with respect to any such company or companies. 3.16 To promote any other company for the purpose of acquiring the whole or any part of the business or property or undertaking or any of the liabilities of the Company, or of undertaking any business or operations which may appear to the board of directors to be likely to assist or benefit the Company or to enhance the value of any property or business of the Company, and to place or guarantee the placing of, underwrite, subscribe for, or otherwise acquire all or any part of the shares or securities of any such company as aforesaid. 3.17 To sell or otherwise dispose of the whole or any part of the business or property of the Company, either together or in portions, for such consideration as the board of directors may think fit, and in particular (but without limitation) for shares, debentures, or securities of any company purchasing the same. 3.18 To act as agent or broker and as trustee or nominee for any person, firm or company, and to undertake and perform sub-contracts. 3.19 To remunerate any person, firm or company rendering services to the Company either by cash payment or by the allotment to him or them of shares or other securities of the Company credited as paid up in full or in part or otherwise. 3.20 To pay all or any expenses incurred in connection with the promotion, formation and incorporation of the Company, or to contract with any person, firm or company to pay the same, and to pay commissions to brokers and others for underwriting, placing, selling, or guaranteeing the subscription of any shares or other securities of the Company. 3.21 To provide, and to establish and maintain or concur in establishing and maintaining trusts, funds, schemes, clubs or other arrangements (whether contributory or non-contributory) with a view to providing: 3.21.1 pensions, insurances, allowances, gratuities, bonuses and incentives and benefits of every description including, but not limited to, retirement benefits schemes and/or life assurance schemes; and 3.21.2 employees' share schemes (within the meaning of section 743 of the Companies Act 1985) including, but not limited to, profit sharing, share option and share purchase schemes to or for the benefit of officers, ex-officers, employees or ex-employees of the Company or its predecessors in business or of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or of any predecessor in business of any such company or the dependants or relatives of any such persons; and to provide or lend money or provide other financial assistance in accordance with or for the purposes of such arrangements. 3.22 To support (whether by direct subscription, the giving of guarantees or otherwise) any charitable, benevolent or educational fund, institution or organisation, or any event or purpose of a public or general nature, the support of which will or may, in the opinion of the board of directors, directly or indirectly benefit, or is calculated so to benefit, the Company or its business or activities or its officers, ex-officers, employees or ex-employees or the business, activities or its officers, ex-officers, employees or ex-employees of any company which is for the time being or has at any time been the Company's holding company or a subsidiary of the Company or another subsidiary of that holding company or the officers, ex-officers, employees or ex-employees of any predecessor in business of the Company or any such company as aforesaid. 3.23 Subject to and in accordance with a due compliance with the provisions of sections 155 to 158 (inclusive) of the Act (if and so far as such provisions shall be applicable), to give, whether directly or indirectly, any kind of financial assistance (as defined in section 152(1)(a) of the Act) for any such purpose as is specified in section 151(1) and/or section 151(2) of the Act. 3.24 To purchase and maintain, for the benefit of any director (including an alternate director), officer or auditor of the Company or of any company which is the holding company, a subsidiary, or a fellow subsidiary of the Company, insurance against any liability as is referred to in section 310(1) of the Act and, subject to the provisions of the Act, against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director (including an alternate director), officer or auditor and, subject also to the provisions of the Act, to indemnify any such person out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto and, without prejudice to the foregoing, to grant any such indemnity after the occurrence of the event giving rise to any such liability. 3.25 To distribute among the members of the Company in kind any property of the Company of whatever nature. 3.26 To procure the Company to be registered or recognised in any part of the world. 3.27 To do all or any of the things or matters aforesaid in any part of the world and either as principal, agent, contractor or otherwise, and by or through agents, brokers, sub-contractors or otherwise and either alone or in conjunction with others. 3.28 To do all such other things as may be deemed incidental or conducive to the attainment of the Company's objects or any of them. AND so that:- 3.28.1 none of the objects set out in any of the preceding sub-clauses of this Clause 3 shall be restrictively construed but the widest interpretation shall be given to each such object, and none of such objects shall, except where the context expressly so requires, be in any way limited or restricted by reference to or inference from any other object or objects set forth in such sub-clause, or by reference to or inference from the terms of any other sub-clause of this Clause 3, or by reference to or inference from the name of the Company; 3.28.2 none of the preceding sub-clauses of this Clause 3 and none of the objects therein specified shall be deemed subsidiary or ancillary to any of the objects specified in any other such sub-clause, and the Company shall have as full a power to exercise each and every one of the objects specified in each sub-clause of this Clause 3 as though each sub-clause contained the objects of a separate company; 3.28.3 the word "company" in this Clause 3, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or unincorporated and whether domiciled in the United Kingdom or elsewhere; 3.28.4 in this Clause 3 the expressions "holding company" and "subsidiary" shall have the meanings given to them respectively by section 736 of the Act and the expression "subsidiaries" shall include a subsidiary undertaking as defined by section 258 of the Act; and 3.28.5 in this Clause 3 the expression "the Act" means the Companies Act 1985, but so that any reference in this Clause 3 to any provision of the Act shall be deemed to include a reference to any statutory modification or re-enactment of that provision at the time this Clause 3 takes effect. 4. The liability of the members is limited. 5. The Company's share capital is (pound)1,000 divided into 1,000 shares of (pound)1 each. We, the several persons whose names, addresses, and descriptions are subscribed, are desirous of being formed into a company in pursuance of this Memorandum of Association and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. Number of shares taken by the/each Subscriber Names, addresses and descriptions of Subscribers JACQUELINE FISHER One 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND One 29 Highbrow Harborne Birmingham B17 9EW Solicitor DATED: 27th January 1998 WITNESS to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary The Companies Act 1985 ------------------------ PRIVATE COMPANY LIMITED BY SHARES ------------------------ ARTICLES OF ASSOCIATION of MPI INTERNATIONAL LIMITED* 1. Preliminary The regulations contained in Table A in the Schedule to the Companies (Tables A to F) Regulations 1985 in force at the time of adoption of these Articles (such Table being hereinafter called "Table A") shall apply to the Company save in so far as they are excluded or varied by these Articles and such regulations (save as so excluded to varied) and these Articles shall be the regulations of the Company. 2. Interpretation In these Articles and in Table A the following expressions have the following meanings unless inconsistent with the context:- "the Act" the Companies Act 1985 including any statutory modification or re- enactment thereof for the time being in force. "these Articles" these Articles of Association, whether as originally adopted or as from time to time altered by special resolution. "clear days" in relation to the period of a notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect. "the directors" the directors for the time being of the Company or (as the context shall require) any of them acting as the board of directors of the Company. "executed" includes any mode of execution. "the holder" in relation to shares means the member whose name is entered in the register of members as the holder of the shares. "office" the registered office of the Company. "seal" the common seal of the Company (if any). "secretary" the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary. "share" includes any interest in a share. "the United Kingdom" Unless the context otherwise requires, words or expressions contained in these Articles and in Table A bear the same meaning as in the Act but excluding any statutory modification thereof not in force when these Articles become binding on the Company. Regulation 1 of Table A shall not apply to the Company. - -------- * The name of the Company was changed (1) from Foray 1085 Limited to Cinergy Global Power Services Limited recorded by Certificate of Incorporation on Change of Name dated 8 April 1998, and (2) from Cinergy Global Power Services Limited to MPI International Limited recorded by Certificate of Incorporation on Change of Name dated 1 May 1998. 3. Share Capital 3.1 The authorised share capital of the Company at the time of incorporation of the Company is(pound)1,000 divided into 1,000 ordinary shares of(pound)1.00 each. 3.2 No shares comprised in the authorised share capital of the Company from time to time shall be issued without the consent in writing of the holder or holders (in aggregate) of a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) nor shall any share be issued at a discount or otherwise be issued in breach of the provisions of these Articles or of the Act. 3.3 Regulation 4 of Table A and, in accordance with section 91(1) of the Act, Sections 89(1) and 90(1) to (6) (inclusive) of the Act shall not apply to the Company. 4. Lien The Company shall have a first and paramount lien on all shares, whether fully paid or not, standing registered in the name of any person indebted or under liability to the Company, whether he shall be the sole registered holder thereof or shall be one of two or more joint holders, for all moneys presently payable by him or his estate to the Company. Regulation 8 of Table A shall be modified accordingly. 5. Calls on shares and forfeiture There shall be added at the end of the first sentence of regulation 18 of Table A, so as to increase the liability of any member in default in respect of a call, the words "and all expenses that may have been incurred by the Company by reason of such non-payment". 6. Transfer of shares The first sentence in regulation 24 of Table A shall not apply to the Company. The words "They may also" at the beginning of the second sentence of that regulation shall be replaced by the words "The directors may". 7. General meetings The directors may call general meetings and regulation 37 of Table A shall not apply to the Company. 8. Notice of general meetings 8.1 A notice convening a general meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 of Table A shall be modified accordingly. The words "or a resolution appointing a person a director" and paragraphs (a) and (b) in regulation 38 of Table A shall be deleted and the words "in acc 369(3) of the Act" shall be inserted after the words "if it is so agreed" in that regulation. 8.2 All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting with the exception of declaring a dividend, the consideration of the profit and loss account, balance sheet, and the reports of the directors and auditors, the appointment of and the fixing of the remuneration of the auditors and the giving or renewal of any authority in accordance with the provisions of section 80 of the Act. 8.3 Every notice convening a general meeting shall comply with the provisions of section 372(3) of the Act as to giving information to members in regard to their right to appoint proxies; and notices of and other communications relating to any general meeting which any member is entitled to receive shall be sent to the directors and to the auditors for the time being of the Company. 9. Proceedings at general meetings 9.1 The words, "save that, if and for so long as the Company has only one person as a member, one member present in person or by proxy shall be a quorum" shall be added at the end of the second sentence of regulation 40 of Table A. 9.2 If a quorum is not present within half an hour from the time appointed for a general meeting the general meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day and at such other time and place as the directors may determine; and if at the adjourned general meeting a quorum is not present within half an hour from the time appointed therefor the member or members present in person or by proxy or (being a body corporate) by repre to vote upon the business to be transacted shall constitute a quorum and shall have power to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. Regulation 41 of Table A shall not apply to the Company. 10. Votes of members 10.1 Regulation 54 of Table A shall not apply to the Company. Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands every member entitled to vote who (being an individual) is present in person or by proxy (not being himself a member entitled to vote) or (being a corporate body) is present by a representative or proxy (not being himself a member entitled to vote) shall have one vote and, on a poll, every member shall have of which he is the holder. 10.2 The words "be entitled to" shall be inserted between the words "shall" and "vote" in regulation 57 of Table A. 10.3 A member shall not be entitled to appoint more than one proxy to attend on the same occasion and accordingly the final sentence of regulation 59 of Table A shall not apply to the Company. Any such proxy shall be entitled to cast the votes to which he is entitled in different ways. 11. Number of directors 11.1 Regulation 64 of Table A shall not apply to the Company. 11.2 The maximum number and minimum number respectively of the directors may be determined from time to time by ordinary resolution. Subject to and in default of any such determination there shall be no maximum number of directors and the minimum number of directors shall be one. 12. Alternate directors 12.1 An alternate director shall be entitled to receive notice of all meetings of the directors and of all meetings of committees of the directors of which his appointor is a member (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him), to attend and vote at any such meeting at which the director appointing him is not personally present, and generally to perform all the functions of his appointor at such meeting as a director i alternate director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice in writing to the Company from time to time direct. Regulation 66 of Table A shall not apply to the Company. 12.2 A director, or any such other person as is mentioned in regulation 65 of Table A, may act as an alternate director to represent more than one director, and an alternate director shall be entitled at any meeting of the directors or of any committee of the directors to one vote for every director whom he represents in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present and the final sentence of reg shall not apply to the Company. 12.3 Save as otherwise provided in the regulations of the Company, an alternate director shall be deemed for the purposes specified in Article 12.1 to be a director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him. Regulation 69 of Table A shall not apply to the Company. 13. Appointment and retirement of directors 13.1 The directors shall not be required to retire by rotation and regulations 73 to 80 (inclusive) of Table A shall not apply to the Company. 13.2 A member or members holding a majority of the voting rights in the Company (within the meaning of section 736A(2) of the Act) shall have power at any time, and from time to time, to appoint any person to be a director, either as an additional director (provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force) or to fill a vacancy and to remove f howsoever appointed. Any such appointment or removal shall be made by notice in writing to the Company signed by the member or members making the same or, in the case of a member being a corporate body, signed by one of its directors or duly authorised officers or by its duly authorised attorney and shall take effect upon lodgement of such notice at the office. 13.3 The Company may by ordinary resolution appoint any person who is willing to act to be a director, either to fill a vacancy or as an additional director. 13.4 The directors may appoint a person who is willing to act to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number determined in accordance with Article 11.2 as the maximum number of directors for the time being in force. 14. Disqualification and removal of directors The office of a director shall be vacated if:- 14.1 he ceases to be a director by virtue of any provision of the Act or these Articles or he becomes prohibited by law from being a director; or 14.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally; or 14.3 he is, or may be, suffering from mental disorder and either:- 14.3.1 he is admitted to hospital in pursuance of an application for admission for treatment under the Mental Health Act 1983 or, in Scotland, an application for admission under the Mental Health (Scotland) Act 1960, or 14.3.2 an order is made by a court having jurisdiction (whether in the United Kingdom or elsewhere) in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs; or 14.4 he resigns his office by notice to the Company; or 14.5 he shall for more than six consecutive months have been absent without permission of the directors from meetings of the directors held during that period and the directors resolve that his office be vacated; or 14.6 he is removed from office as a director pursuant to Article 13.2; and regulation 81 of Table A shall not apply to the Company. 15. Gratuities and pensions Regulation 87 of Table A shall not apply to the Company and the directors may exercise any powers of the Company conferred by its Memorandum of Association to give and provide pensions, annuities, gratuities or any other benefits whatsoever to or for past or present directors or employees (or their dependants) of the Company or any subsidiary or associated undertaking (as defined in section 27(3) of the Companies Act 1989) of the Company and the Directors shall be entitled to retain any benefits by them or any of them by reason of the exercise of any such powers. 16. Proceedings of the directors 16.1 Whensoever the minimum number of the directors shall be one pursuant to the provisions of Article 11.2, a sole director shall have authority to exercise all the powers and discretions which are expressed by Table A and by these Articles to be vested in the directors generally and regulations 89 and 90 of Table A shall be modified accordingly. 16.2 Subject to the provisions of the Act, and provided that he has disclosed to the directors the nature and extent of any interest of his, a director notwithstanding his office:- 16.2.1 may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is in any way interested; 16.2.2 may be a director or other officer of or employed by or be a party to any transaction or arrangement with or otherwise interested in any body corporate promoted by the Company or in which the Company is in any way interested; 16.2.3 may or any firm or company of which he is a member or director may act in a professional capacity for the Company or any body corporate in which the Company is in any way interested; 16.2.4 shall not by reason of his office be accountable to the Company for any benefit which he derives from such office, service or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit; and 16.2.5 shall be entitled to vote on any resolution and (whether or not he shall vote) be counted in the quorum on any matter referred to in any of Articles 16.2.1 to 16.2.4 (inclusive) or on any resolution which in any way concerns or relates to a matter in which he has, directly or indirectly, any kind of interest whatsoever and if he shall vote on any resolution as aforesaid his vote shall be counted. 16.3 For the purposes of Article 16.2:- 16.3.1 a general notice to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; 16.3.2 an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; and 16.3.3 an interest of a person who is for any purpose of the Act (excluding any statutory modification not in force when the Company was incorporated) connected with a director shall be treated as an interest of the director and in relation to an alternate director an interest of his appointor shall be treated as an interest of the alternate director without prejudice to any interest which the alternate director has otherwise. 16.4 Any director (including an alternate director) may participate in a meeting of the directors or a committee of the directors of which he is a member by means of a conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other and participation in a meeting in this manner shall be deemed to constitute presence in person at such meeting and, subject to these Articles and the Act, he shall be entitled to vote and be counte accordingly. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is. 16.5 Regulation 88 of Table A shall be amended by substituting for the sentence:- "It shall not be necessary to give notice of a meeting to a director who is absent from the United Kingdom" the following sentence:- "Notice of every meeting of the directors shall be given to each director and his alternate, including directors and alternate directors who may for the time being be absent from the United Kingdom and have given the Company an address within the United Kingdom for service." 16.6 Regulations 94 to 97 (inclusive) of Table A shall not apply to the Company. 17. The seal If the Company has a seal it shall be used only with the authority of the directors or of a committee of the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined, every instrument to which the seal is affixed shall be signed by one director and by the secretary or another director. The obligation under regulation 6 of Table A relating to the sealing of share certificates shall only apply if the Company has a seal. Regulation 101 of Table A shall not apply to the Company. 18. Notices 18.1 In regulation 112 of Table A, the words "by telex to a telex number supplied by the member for such purpose or" shall be inserted immediately after the words "or by sending it" and the words "first class" shall be inserted immediately before the words "post in a prepaid envelope". 18.2 Where a notice is sent by first class post, proof of the notice having been posted in a properly addressed, prepaid envelope shall be conclusive evidence that the notice was given and shall be deemed to have been given at the expiration of 24 hours after the envelope containing the same is posted. Where a notice is sent by telex receipt of the appropriate answerback shall be conclusive evidence that the notice was given and the notice shall be deemed to have been given at the time following receipt of the appropriate answerback. Regulation 115 of Table A shall not apply to the Company. 18.3 If at any time by reason of the suspension or curtailment of postal services within the United Kingdom the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one national daily newspaper and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day when the advertisement appears. In any such case the Company shall send confirm notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable. 19. Winding up In regulation 117 of Table A, the words "with the like sanction" shall be inserted immediately before the words "determine how the division". 20. Indemnity 20.1 Subject to the provisions of section 310 of the Act every director (including an alternate director) or other officer of the Company shall be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the lawful execution of the duties of his office or otherwise in relation thereto, including any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgement is given in his favour o acquitted or in connection with any application under section 144 or section 727 of the Act in which relief is granted to him by the court, and no director (including an alternate director) or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the lawful execution of the duties of his office or in relation thereto. Regulation 118 of Table A shall not apply to the Company. 20.2 The directors shall have power to purchase and maintain at the expense of the Company for the benefit of any director (including an alternate director), officer or auditor of the Company insurance against any such liability as is referred to in section 310(1) of the Act and subject to the provisions of the Act against any other liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done an alternate director), officer or auditor. 20.3 The directors may authorise directors of companies within the same group of companies as the Company to purchase and maintain insurance at the expense of the Company for the benefit of any director (including an alternate director), other officer or auditor of such company in respect of such liability, loss or expenditure as is referred to in Article 20.2. Names, addresses and descriptions of Subscribers JACQUELINE FISHER 926 Kingstanding Road Birmingham B44 9NG Secretary MATTHEW WILLIAM EDWARD HYLAND 29 Highbrow Harborne Birmingham B17 9EW Solicitor Dated: 27th January 1998 Witness to the above signatures:- MICHELLE HUNT 269 Foley Road West Streetly Sutton Coldfield B74 3NU Secretary EX-99 35 CINERGY GLOBAL SAN GORGONIO, INC. CERT. OF INCORP. CERTIFICATE OF INCORPORATION OF Cinergy Global San Gorgonio, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is: Cinergy Global San Gorgonio, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Julia S. Janson, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this 13th day of October, 1998. /s/ Julia S. Janson Julia S. Janson Sole Incorporator Document #: 36888 EX-3.(II) 36 CINERGY GLOBAL SAN GORGONIO, INC. BY-LAWS BY-LAWS OF Cinergy Global San Gorgonio, Inc. October 13, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 1 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 1 Section 2.2. Notice of Annual Meeting. 1 Section 2.3. Special Meetings. 1 Section 2.4. Notice of Special Meeting. 1 Section 2.5. Waiver of Notice. 2 Section 2.6. Quorum. 2 Section 2.7. Voting. 2 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 2 ARTICLE III Directors Section 3.1. Duties and Powers. 3 Section 3.2. Number and Election of Directors. 3 Section 3.3. Vacancies. 3 Section 3.4. Meetings. 3 Section 3.5. Quorum. 3 Section 3.6. Actions of Board. 4 Section 3.7. Meetings by Means of Conference Telephone.4 Section 3.8. Committees. 4 Section 3.9. Compensation. 4 Section 3.10. Contracts and Transactions Involving Directors. 4 ARTICLE IV Officers Section 4.1. Officers. 5 Section 4.2. Appointment, Terms, and Vacancies. 5 Section 4.3. Chairman of the Board. 5 Section 4.4. Chief Executive Officer. 5 Section 4.5. President. 6 Section 4.6. Vice Presidents. 6 Section 4.7(a). Secretary. 6 Section 4.7(b). Assistant Secretaries. 6 Section 4.8. Treasurer. 7 Section 4.9. Comptroller. 7 Section 4.10. Other Officers. 7 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 7 Section 5.2. Signatures. 8 Section 5.3. Lost Certificates. 8 Section 5.4. Transfers. 8 Section 5.5. Record Date. 8 Section 5.6. Beneficial Ownership Rights. 8 ARTICLE VI Notices Section 6.1. Notices. 9 Section 6.2. Waivers of Notice. 9 ARTICLE VII General Provisions Section 7.1. Dividends. 9 Section 7.2. Disbursements. 9 Section 7.3. Voting Securities Owned by the Corporation9 Section 7.4. Fiscal Year. 10 Section 7.5. Corporate Seal. 10 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 10 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 10 Section 8.3. Authorization of Indemnification. 11 Section 8.4. Good Faith Defined. 11 Section 8.5. Indemnification by a Court. 12 Section 8.6. Expenses Payable in Advance. 12 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 12 Section 8.8. Insurance. 12 Section 8.9. Certain Definitions. 13 Section 8.10. Survival of Indemnification and Advancement of Expenses. 13 Section 8.11. Limitation on Indemnification. 13 Section 8.12. Indemnification of Employees and Agents. 13 ARTICLE IX Amendments Section 9.1. Amendments. 14 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 14 By-Laws Of Cinergy Global San Gorgonio, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. Document #: 36930 EX-99 37 CINERGY GLOBAL HOLDINGS, INC. CERT. OF INCORP. CERTIFICATE OF INCORPORATION OF Cinergy Global Holdings, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is: Cinergy Global Holdings, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is five hundred (500) shares of common stock, without par value. FIFTH: The name and mailing address of the incorporator is Julia S. Janson, 139 East Fourth Street, 25 AT II, Cincinnati, Ohio 45202. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by-laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this ______ day of December, 1998. ------------------------------ Julia S. Janson Sole Incorporator Document #: 39030 EX-3.(II) 38 CINERGY GLOBAL HOLDINGS, INC. BY-LAWS BY-LAWS OF CINERGY GLOBAL HOLDINGS, INC. DECEMBER 18, 1998 TABLE OF CONTENTS ARTICLE I Offices Section 1.1. Offices. 1 ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. 1 Section 2.2. Notice of Annual Meeting. 1 Section 2.3. Special Meetings. 1 Section 2.4. Notice of Special Meeting. 1 Section 2.5. Waiver of Notice. 2 Section 2.6. Quorum. 2 Section 2.7. Voting. 2 Section 2.8. Written Consent of Stockholders in Lieu of Meeting. 2 ARTICLE III Directors Section 3.1. Duties and Powers. 3 Section 3.2. Number and Election of Directors. 3 Section 3.3. Vacancies. 3 Section 3.4. Meetings. 3 Section 3.5. Quorum. 3 Section 3.6. Actions of Board. 4 Section 3.7. Meetings by Means of Conference Telephone. 4 Section 3.8. Committees. 4 Section 3.9. Compensation 4 Section 3.10. Contracts and Transactions Involving Directors 4 ARTICLE IV Officers Section 4.1. Officers. 5 Section 4.2. Appointment, Terms, and Vacancies. 5 Section 4.3. Chairman of the Board. 5 Section 4.4. Chief Executive Officer 5 Section 4.5. President. 6 Section 4.6. Vice Presidents. 6 Section 4.7(a). Secretary. 6 Section 4.7(b). Assistant Secretaries. 6 Section 4.8. Treasurer. 7 Section 4.9. Comptroller. 7 Section 4.10. Other Officers. 7 ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. 7 Section 5.2. Signatures. 8 Section 5.3. Lost Certificates. 8 Section 5.4. Transfers. 8 Section 5.5. Record Date. 8 Section 5.6. Beneficial Ownership Rights. 8 ARTICLE VI Notices Section 6.1. Notices. 9 Section 6.2. Waivers of Notice. 9 ARTICLE VII General Provisions Section 7.1. Dividends. 9 Section 7.2. Disbursements. 9 Section 7.3. Voting Securities Owned by the Corporation. 9 Section 7.4. Fiscal Year. 10 Section 7.5. Corporate Seal. 10 ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. 10 Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. 10 Section 8.3. Authorization of Indemnification. 11 Section 8.4. Good Faith Defined. 11 Section 8.5. Indemnification by a Court. 12 Section 8.6. Expenses Payable in Advance. 12 Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. 12 Section 8.8. Insurance. 12 Section 8.9. Certain Definitions. 13 Section 8.10. Survival of Indemnification and Advancement of Expenses. 13 Section 8.11. Limitation on Indemnification. 13 Section 8.12. Indemnification of Employees and Agents. 13 ARTICLE IX Amendments Section 9.1. Amendments. 14 ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. 14 By-Laws Of Cinergy Global Holdings, Inc. (hereinafter called the "Corporation") ARTICLE I Offices Section 1.1. Offices. To the extent not otherwise provided in the Certificate of Incorporation, the principal office of the Corporation shall be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may have such other offices at such other places as the Board of Directors may from time to time determine, or as the business of the Corporation may require. ARTICLE II Stockholders' Meetings Section 2.1. Annual Meeting. The annual meeting of the stockholders may be held at such place, time, and date designated by the Board of Directors for the election of directors, the consideration of the reports to be laid before the meeting, and the transaction of such other business as may be brought before the meeting. Section 2.2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 2.3. Special Meetings. Special meetings of the stockholders may be called at any time by the Chairman of the Board, the Chief Executive Officer, or the President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate the express percentage, as provided by statute, of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 2.4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, at least twenty (20) days and not more than forty-five (45) days prior to the meeting. Section 2.5. Waiver of Notice. Notice of the time, place and purpose of any meeting of stockholders may be waived by the written assent of every stockholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 2.6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, or, if the vote is to be taken by classes, the holders of shares of each class entitling them to exercise a majority of the voting power of that class, present in person or by proxy at any meeting of the stockholders, unless otherwise specified by statute, shall constitute a quorum. If, however, at any meeting of the stockholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the stockholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice (unless the meeting has been adjourned for over thirty days), other than by announcement at the meeting at which such adjournment is taken, until a quorum is present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called. Section 2.7. Voting. At each meeting of the stockholders, except as otherwise provided by statute or the Certificate of Incorporation, every holder of record of stock of the class or classes entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date, not later than such time as expressly provided by statute, prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then as expressly provided by statute. (e.g., either the date of the meeting, the date next proceeding the day of the meeting, or any such similar governing time frame). Cumulative voting shall be permitted only as expressly provided by statute. At any meeting of stockholders, a list of stockholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then as hereinbefore stated as expressly provided by statute) shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any action required or permitted by statute, the Certificate of Incorporation, or these By-Laws, to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a written consent in lieu of a meeting, setting forth the action so taken, shall be signed by all the stockholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Directors Section 3.1. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not, by statute, the Certificate of Incorporation, or these By-Laws, directed or required to be exercised or done by the stockholders. Section 3.2. Number and Election of Directors. The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Directors shall be elected annually by stockholders at their annual meeting, in a manner consistent with statute and as provided in Article II, Section 2.8 of these By-Laws, and each director so elected shall hold office until his/her successor is duly elected and qualifies, or until his/her earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders and shall fulfill the residency requirements as and if provided by statute. Any director may be removed at any time with or without cause by a majority vote of the stockholders, unless otherwise provided by statute. Section 3.3. Vacancies. Vacancies and newly created directorships, resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, and the directors so chosen shall hold office for the unexpired term of the predecessor and/or until the next annual meeting of stockholders, and until their successors are duly elected and qualify, or until their earlier resignation or removal. Section 3.4. Meetings. Regular meetings of the Board of Directors may be held at such time, place, and upon such notice as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by members of the board (the express percentage of the latter as minimally provided for by statute). Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail (not less than forty-eight (48) hours before the date of the meeting), by telephone or telegram (on twenty-four (24) hours' notice) or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 3.5. Quorum. Except as may be otherwise specifically provided for by statute, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee(s) thereof, may be taken without a meeting, if all the members of the Board of Directors, or of such committee(s), as the case may be, consent thereto in writing, and the writing(s) is filed with the minutes of proceedings of the Board of Directors, or of such committee(s), of the Corporation. Any such written consent to action of the Board of Directors, or of such committee(s), shall be effectuated by the signature of the member lastly consenting thereto in writing, unless the consent otherwise specified a prior or subsequent effective date. Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee(s) thereof, may participate in a meeting of the Board of Directors, or of such committee(s), as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting. Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate, from time to time as they may see fit, one or more committees, each such committee to consist of three or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any such committee who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by statute and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 3.9. Compensation. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such reasonable compensation, which may include pension, disability and death benefits, as may be determined from time to time by the Board of Directors. Reasonable compensation may also be paid to any person other than a director officially called to attend any such meeting. Section 3.10. Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his/her or their votes are counted for such purpose if: (i) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his/her or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV Officers Section 4.1. Officers. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may consist of a Chairman of the Board, a Chief Executive Officer, a Comptroller, one or more Vice Presidents, one or more Assistant Secretaries, and such other officers as the board shall from time to time deem necessary. Any number of offices may be held by the same person, unless otherwise prohibited by statute, the Certificate of Incorporation, or these By- Laws. Section 4.2. Appointment, Terms, and Vacancies. The Board of Directors, at its first meeting held after each annual meeting of stockholders of the Corporation (i.e., the annual organization meeting of the Board of Directors), shall appoint the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board, and such officers shall hold office until their successors are chosen and shall qualify, or until their earlier resignation or removal from office. Any officer appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the board. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Section 4.3. Chairman of the Board. The Chairman of the Board, if there be one, shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or incapacity of the Chief Executive Officer and the President, meetings of the stockholders, and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall have the general powers and duties as are incident to the office of Chairman of the Board of a corporation. Section 4.4. Chief Executive Officer. The Chief Executive Officer, if there be one, shall preside at all meetings of the stockholders and, in the absence or incapacity of the Chairman of the Board, meetings of the Board of Directors. The Chief Executive Officer shall from time to time report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. Where the offices of Chief Executive Officer and President are held by different individuals, the President will report directly to the Chief Executive Officer. Section 4.5. President. The President shall be the chief operating officer of the Corporation, and shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors, or of any committee(s) thereof, are carried fully into effect, and shall have the general powers and duties of supervision and management as are incident to the office of President of a corporation. In the absence or incapacity of the Chief Executive Officer, the President also shall be the chief executive officer of the Corporation. Section 4.6. Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President shall exercise the powers and duties of the President. Section 4.7(a). Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders of the Corporation, and act as clerk thereof, and record all votes and the minutes of all proceedings in a book to be kept for that purpose, shall record all written business transactions, shall perform like duties for the standing committees when required, and shall have the general powers and duties as are incident to the office of Secretary of a corporation. The Secretary shall give, or cause to be given, proper notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. The Secretary shall have custody of the seal, if there be one, of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. (The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his/her signature). The Secretary shall see that all books, reports, statements, certificates and other documents and records required by statute to be kept or filed are properly kept or filed, as the case may be. Section 4.7(b). Assistant Secretaries. At the request of the Secretary, or in his or her absence or incapacity to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or the Secretary. Section 4.8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President, taking proper vouchers therefor, and shall render to the President, the Chief Executive Officer, the Chairman of the Board, and/or directors at any meeting of the board, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation, and shall have the general powers and duties as are incident to the office of Treasurer of a corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in such sum with surety as shall be satisfactory to the Board of Directors for the faithful performance of his or her duties as Treasurer and for the restoration to the Corporation, in the case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession, or under his or her control, and belonging to the Corporation. The Treasurer shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, or the President. Section 4.9. Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies, and shall have executive direction over the bookkeeping and accounting functions and shall have the general powers and duties as are incident to the office of comptroller of a corporation. The Comptroller shall perform such other duties as may be prescribed by the Board of Directors (including by the Chairman of the Board), the Chief Executive Officer, the President, or a Vice President. Section 4.10. Other Officers. Such other officers of the Corporation as the Board of Directors may appoint shall perform such duties and have such powers as from time to time may be assigned to them by the board. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers. ARTICLE V Capital Stock Section 5.1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with statute and the Certificate of Incorporation, as shall be approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation, by (i) either the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (ii) by any one of the following officers: the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 5.2. Signatures. Any or all of the signatures on a certificate may be a facsimile thereof. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he/she were such officer, transfer agent or registrar at the date of issue. Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his/her legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 5.4. Transfers. The capital stock of the Corporation shall be transferable in the manner provided by statute and in these By-Laws. Transfers of shares shall be made on the books of the Corporation only by the person named in the certificate or by his/her attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Section 5.5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5.6. Beneficial Ownership Rights. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by statute. ARTICLE VI Notices Section 6.1. Notices. Whenever written notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, such notice may be given by mail, addressed to each such person, at his/her address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, or as otherwise provided by statute. Written notice may also be given personally or by telegram, telex or cable. Section 6.2. Waivers of Notice. Whenever any notice is required by statute, the Certificate of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII General Provisions Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to any provision imposed by the Certificate of Incorporation, may be declared by the Board of Directors at any regular or special meeting, or by written consent to the action of the board without such meeting(s), and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 7.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President, any Vice President, the Secretary, or any Assistant Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 7.4. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the thirty-first day of December each year. Section 7.5. Corporate Seal. The seal of the Corporation (if there be one) shall have inscribed thereon the name of the Corporation, the year of its incorporation, the words "Corporate Seal" and "Delaware", and any such other emblem or device as approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Indemnification Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other than Those By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him/her in connection with such action, suit or proceeding, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he/she reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his/her conduct was unlawful. Section 8.2. Power to Indemnify in Actions, Suits or Proceedings By or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he/she is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection with the defense or settlement of such action or suit if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his/her duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he/she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him/her in connection therewith, without the necessity of authorization in the specific case. Any determination made by the disinterested directors or by independent legal counsel under this section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under Section 8.1 and 8.2 of this Article VIII, and, within ten days after receipt of such notification, such persons shall have the right to petition the court (at courts' discretion) in which such action or suit was brought to review the reasonableness of such determination. Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his/her conduct was unlawful, if his/her action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him/her by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 8.4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 8.1 and 8.2 of this Article VIII. The basis of such indemnification by a court shall be a deter mination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 8.6. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or disinterested directors, or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his/her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be made to the fullest extent permitted by statute. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but whom the Corporation has the power or obligation to indemnify under the provisions of statute of the State of Delaware, or otherwise. Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him/her and incurred by him/her in any such capacity, or arising out of his/her status as such, whether or not the Corporation would have the power or the obligation to indemnify him/her against such liability under the provisions of this Article VIII. Section 8.9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he/she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he/she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation", as referred to in this Article VIII. Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. The Corporation shall indemnify a director who was wholly successful, on merits or otherwise, in the defense of any proceedings to which he/she was a party because he/she was a director of the Corporation against reasonable expenses incurred by him/her in connection with the proceeding. Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation, similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX Amendments Section 9.1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted: (i) by the affirmative vote of a majority of the holders of record of the outstanding shares entitled to vote thereon, or by the written consent of the holders of record of a two-thirds majority of the outstanding shares entitled to vote thereon, except as such alteration, amendment or repeal by any vote or written consent of the stockholders is otherwise expressly prohibited by statute; or (ii) by a majority vote of the Board of Directors, or by unanimous written consent of the board, except as such alteration, amendment or repeal by any vote or action of the board is otherwise expressly prohibited by statute. ARTICLE X Emergency By-Laws Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be operative during any emergency in the conduct of the business of the Corporation resulting from an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action, notwithstanding any provision to the contrary in the preceding By-Laws, in the Certificate of Incorporation, or in the statute. To the extent not inconsistent with the provisions of this Section 10.1, the By-Laws of the Corporation shall remain in effect during any emergency, and upon its termination, the Emergency By-Laws shall cease to be operative. Any amendments to these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstance of the emergency. During any such emergency: (A) a meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting or conference call shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) the director or directors in attendance at the meeting shall constitute a quorum; (C) the officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed the directors for such meeting; (D) the Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the Corporation shall for any reason be rendered incapable of discharging their duties; (E) the Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) to the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the Corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, the directors for such meeting. No officer, director or employee acting in accordance with any provision of these Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to alteration, amendment or repeal by the further actions of the Board of Directors or stockholders of the Corporation. EX-99 39 COPPERBELT ARTICLES OF INCORPORATION COMPANIES ACT, 1994 (ZAMBIA) ARTICLES OF ASSOCIATION REGULATIONS FOR MANAGEMENT OF COPPERBELT ENERGY CORPORATION PLC, A COMPANY LIMITED BY SHARES Table of Divisions 1. Interpretation 2. Share Capital and Variation of Rights 3. Special Share 4. Calls on Shares 5. Lien 6. Forfeiture of Shares 7. Transfer of Shares 8. Transmission of Shares 9. Alteration of Capital 10. Restrictions on the Company's Activities 11. General Meetings 12. Proceedings at General Meetings 13. Directors 14. Retirement of Directors 15. Alternate Directors 16. Borrowing powers 17. Delegation of Directors Powers 18. Proceedings of Directors 19. Managing Director 20. Chief Executive 21. Secretary 22. Seal 23. Contracts with Affiliates 24. Inspection of Records 25. Dividends and Reserves 26. Capitalisation of Profits 27. Winding Up 28. Indemnity 29. Weighted Voting 1. Interpretation 1.1 (1) In these Regulations, unless the context otherwise requires: "Act" means the Zambian Companies Act 1994, as amended from time to time whether before or after the date of adoption of these Regulations and shall include any and all regulations made thereunder; "Affiliate" means: (i) any Person in which the Company or a Corporate Shareholder (as the case may be) holds fifty per cent. (50%) or more of the ordinary voting shares or which holds fifty per cent. (50%) or more of the Company's Shares or a Corporate Shareholder's (as the case may be) ordinary shares; (ii) any Person which, directly or indirectly, is Controlled by or Controls, or is under Common Control with the Company or a Shareholder (as the case may be); or (iii)any Person or group of Persons being directors or executive officers, or in the employment of, any Person referred to in (i) or (ii) above; "Arms' Length Terms" save for as contemplated in any Intercompany Document, Transaction Document or the Loan Agreement means a transaction where: (a) the parties in negotiating the transaction have sought to promote their own best interests in accordance with fair and honest business methods; (b) the consideration expressed in the agreement for the transaction entered into is the only consideration for the transaction; (c) the price and other terms of the transaction have not been affected by, nor determined as a consequence of, any other agreement or any direct or indirect relationship (other than the relationship created by the transaction) between the selling party or shareholders of the selling party, or a company in which the selling party is a shareholder, and buying party or shareholders of the buying party, or a company in which the buying party is a shareholder; and (d) neither the selling party, nor any person or company connected with it through shareholding or otherwise, has any direct or indirect interest in the subsequent disposal, if applicable, by the buying party of any of the products or services obtained pursuant to the transaction agreement; "Business" means the business to be carried on by the Company, namely that of electricity transmission, distribution and generation whether within or outside Zambia and such other activities incidental and/or conducive to the foregoing which may be approved by the Directors from time to time in accordance with the terms of the Shareholders' Agreement; "Business Day" means a day other than a Saturday or Sunday or a public holiday on which commercial banks are generally open for business in Zambia, the United States of America or the United Kingdom; "Buyer" means the buyer defined in the Share Purchase and Subscription Agreement; "Change of Control" means the obtaining of Control (a) of the Company by any Person who did not previously have Control of the Company or (b) of any Person who has Control of the Company by another Person who did not previously have such Control; "Common Control" means the circumstances where two (2) or more Persons are Controlled by the same Person or its Affiliates; "Control" means: (a) the power (whether directly or indirectly) and whether by the ownership of share capital, the possession of voting power, contract or otherwise to appoint or remove all or such of the board of directors or other governing body of a Person as are able to cast a majority of the votes capable of being cast by the members of that board or body, or otherwise to control or have the power to control the policies and affairs of that Person; (b) the holding or the ownership of the beneficial interest or the ability to exercise the voting rights applicable to shares or other securities in any Person which confer in aggregate on the holders (whether directly or by means of holding such interests in one or more other Persons (either directly or indirectly) thereof more than fifty per cent. (50%) of the voting rights exercisable at general meetings of that Person; and "Controlled by" shall be construed in accordance with this definition; "Electricity Regulation Board" means the board for electricity regulation as constituted under Section 3 of the Energy Act; "Encumbrance" means a mortgage, charge, pledge, lien, option, restriction, right first refusal, right of pre-emption, third party right or interest, other encumbrance or security interest of any kind or another type of preferential arrangement (including, without limitation, a title transfer or retention arrangement) having similar effect in each case having a Material Adverse Effect; "Energy Act" means the Energy Regulation Act, 1995 (Act No 16 of 1995) as from time to time amended and in effect; "Government Director" means a Director appointed and nominated by the Special Shareholder and holding office as such pursuant to Regulation 13.2 hereof; "GRZ" means the Government of the Republic of Zambia acting through the Ministry of Finance "Licences" means the licences to operate the Business as the same may from time to time be issued to the Company by the Energy Regulation Board pursuant to Section 11 of the Energy Act; "Material Adverse Effect" means a material adverse effect on the condition (financial or otherwise) of the Company or any of its assets (either individually or in the aggregate) which has or may have a material adverse effect on the Company's present or future ability to operate the Business as now conducted or as proposed to be conducted pursuant to the Approved Programme of Operations; "prescribed rate of interest" means the rate of interest prescribed in Regulations made under the Act for the purposes of the Standard Regulations; "resolution" means an ordinary resolution of the company; "seal" means the common seal of the Company and includes any official seal of the Company; "secretary" means any person appointed to perform the duties of a secretary of the Company; "Share" means an ordinary share of US$1.00 each in the capital of the Company; "Share Purchase and Subscription Agreement" means the agreement dated 21 November 1997 between JCo, the Buyer, ZCCM and GRZ for the purchase and subscription of Shares; "Shareholder" means a registered holder of Shares and "holder" shall be construed accordingly; "Shareholders' Agreement" means the agreement between the Company, Zambia Consolidated Copper Mines Limited and the Buyer dated 21 November 1997; "Special Share" means the one (1) Special Share of US$1.00 in the share capital of the Company issued in accordance with Regulation 3; "Special Shareholder" shall mean the holder for the time being of the Special Share; "Standard Regulations" means the Standard Articles set out in the First Schedule (Section 2) to the Companies Act 1994; "Subsidiary" means a company where another company: (1) holds a majority of the voting rights in it; or (2) is a member of it and has the right to appoint or remove a majority of its board of directors; or (3) is a member of it and Controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it, or if it is a Subsidiary of a company which is itself a Subsidiary of that other company; "US$ or "US dollars" means the lawful currency of the United States of America; "Zambia" means the Republic of Zambia; "ZCCM" means Zambia Consolidated Copper Mines Limited and (where the context so requires) includes any Affiliate of ZCCM. (2) Unless the context otherwise requires, an expression, if used in a provision of these Regulations that deals with a matter dealt with by a particular provision of the Act, has the same meaning as in that provision of the Act but excluding any modification to or re-enactment of the Act not in force at the date of adoption of these Regulations. (3) The Standard Regulations shall not apply as the Regulations of the Company. (4) Where an ordinary resolution of the Company is expressed to be required for any purpose, a special or extraordinary resolution shall also be effective, and where an extraordinary resolution is expressed to be required for any purpose, a special resolution shall also be effective. (5) A reference to any person includes a reference to any individual, firm, association, company authority or other incorporated or unincorporated body. 2. Share Capital and Variation of Rights 2.1 At the date of adoption of this Regulation the share capital of the Company is one hundred thousand and one United States dollars (US$100,001) divided into ten million (10,000,000) Shares with a par value of one US cent (1 US cent) each and one (1) Special Share of one United States dollar (US$1.00). The Shares and the Special Share shall entitle the holders of those Shares to the respective rights and privileges and subject them to the respective restrictions and provisions contained in these Regulations. All the Shares and the Special Share for the time being in issue shall constitute separate classes of shares respectively for the purposes of these Regulations and the Act but, except as otherwise provided by these Regulations, shall rank pari passu in all respects. [*] [*Adopted by Special Resolution on December 3,1997] 2.2 Without prejudice to any special rights previously conferred on the holders of any existing Shares, but subject to the Act, Regulation 2.3, Regulation 2.5 and Regulation 10, any unissued Shares (whether forming part of the original or any increased share capital) shall be at the disposal of the Directors who may offer, allot, grant options over or otherwise dispose of them at such times and for such consideration and upon such terms and conditions as they may determine. 2.3 Shares may be issued if an offer has been made by the Company in accordance with Regulation 2.5 to each Shareholder to allot to him (on the same terms in respect of which the issue is proposed to be made to all other Shareholders) a proportion of the Shares proposed to be issued which is as nearly as practicable equal to the proportion in nominal value held by him of the aggregate of Shares then issued and the period of acceptance of such offer specified in Regulation 2.5(4) has expired or the Company has received notice of acceptance or refusal of the offer (as the case may be); 2.4 The Company shall have the right to make such exclusions or other arrangements in connection with such offer as is referred to in Regulation 2.5 as the Board deems necessary or expedient to deal with: (1) Shares representing fractional entitlements; (2) legal or practical problems under the laws of, or the requirements of a recognised regulatory body, or a stock exchange in, any territory. 2.5 2.5 (1) All new Shares proposed to be issued shall be offered to such Persons as are described in Regulation 2.3 by a notice sent to each Person and, in the case of Shares subject to the ZCCM Free Carried Interest rights and, if applicable, the ZCCM Repayable Carried Interest rights set out in Clause 13 and, if applicable, Clause 14 in each case of the Shareholders' Agreement to the Buyer as well (the "Offer Notice") stating the number of Shares proposed to be allocated to that Shareholder (the "Offer Shares") and the subscription price therefor (the "Subscription Price"); (1) (2) the Offer Notice shall remain open for acceptance for a period of sixty (60) Business Days and will only be capable of acceptance on the terms and in the manner described in the Offer Notice (the "Acceptance"); (2) (3) within seven (7) days of receipt by the Company of the Acceptance, the Company will, upon receipt of the Subscription Price, issue and allot the Offer Shares to the Person(s) so accepting the offer; (3) (4) upon receipt by the Company of a notification that the offer will not be accepted by a Shareholder or the expiry of the sixty (60) Business Day period referred to in Regulation 2.5(2) without an Acceptance having been received from a Shareholder (as the case may be), the Company shall (within a period of thirty (30) Business Days from the date of such receipt and/or expiry (as the case may be)) offer the Offer Shares for which an Acceptance has not been received to those persons who have accepted the Offer Notice pro rata to the Shares then held by such Persons, on the terms mutatis mutandis in which the offer was made pursuant to Regulation 2.5(1) and if accepted, may issue and allot such Offer Shares so accepted to such persons within a further period of thirty (30) Business Days; (4) (5) upon receipt by the Company of a notification that an offer made pursuant to Regulation 2.5(4) will not be accepted by a Shareholder to whom it has been made or the expiry of the thirty (30) Business Day period referred to in Regulation 2.5(4) without an Acceptance having been received from a Shareholder to whom it has been made (as the case may be), the Company shall (within a period of thirty (30) Business Days from the date of such receipt and/or expiry (as the case may be)) offer such Offer Shares for which Acceptances have not been received to any Shareholders (pro rata to the Shares then held by such person) which have accepted the offer made pursuant to Regulation 2.5(4) and, in the event the Offer Shares are not all accepted by such Shareholder(s), to such other persons as they think fit at the price and upon the terms of the original offer and, if accepted, may issue and allot such Offer Shares so accepted to such persons within a further period of thirty (30) Business Days provided that such persons have agreed to be subject to the provisions of the Shareholders' Agreement. 2.6 2.6 Subject to the Act, any shares may, with the sanction of a resolution, be issued on the terms that they are, or at the option of the Company are liable, to be redeemed. 2.7 2.7 (1) If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound-up, be varied with the consent in writing of the holders of three-quarters of the issued shares of that class, or with the sanction of a special resolution passed at a separate meeting of the holders of the shares of the class. (1) (2) The provisions of the Act and these Regulations relating to general meetings apply to class meetings so far as they are capable of application and with the necessary modifications to every such class meeting except that:- (a) where a class has only one (1) member - that member shall constitute a meeting; (b) in any other case - a quorum shall be constituted by two (2) Persons who, between them, hold or represent by proxy one-third of the issued shares of the class; and (c) any holder of shares of the class, present in person or by proxy, may demand a poll. (2) (3) The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall, unless otherwise expressly provided by the terms of issue of the shares of that class, be varied by the creation or issue of further shares ranking equally with the first-mentioned shares. 2.8 2.8 (1) The Company may make payments by way of brokerage or commission on the issue of shares. (1) (2) Such payments shall not exceed the rate of ten per cent. (10%) of the price at which the shares are issued or an amount equal to ten per cent. (10%) of that price, as the case may be. (2) (3) Such payments may be made in cash, by the allotment of fully or partly paid shares or partly by the payment of cash and partly by the allotment of fully or partly paid shares. 2.9 2.9 (1) Except as required by law, the Company shall not recognise a Person as holding a share upon any trust. (1) (2) The Company shall not be bound by or compelled in any way to recognise (whether or not it has notice of the interest or rights concerned) any equitable, contingent, future or partial interest in any share or unit of a share of (except as otherwise provided by these Regulations or by law) any other right in respect of a share except an absolute right of ownership in the registered holder. 2.10 2.10 (1) A Person whose name is entered as a member in the register of members shall be entitled without payment to receive a certificate in respect of the share under the seal of the Company in accordance with the Act but, in respect of a share or shares held jointly by several persons, the Company shall not be bound to issue more than one (1) certificate. (1) (2) Delivery of a certificate for a share to one (1) of several joint holders shall be sufficient delivery to all such holders. (2) (3) If a share certificate is defaced, lost or destroyed, it may be renewed on payment of the fee allowed by the Act, or such lesser sum, and on such terms (if any) as to evidence and the payment of costs to the Company of investigating evidence as the Directors decide. 3. Special Share 3.1 3.1 (1) The Special Share may only be issued to, held by and transferred to the Minister responsible for finance or his successor or a nominee on his behalf or any other Minister or other person acting on behalf of GRZ or the Electricity Regulation Board or any successor or nominee thereof. (1) (2) Notwithstanding any provisions in these presents to the contrary, the amendment, removal or alteration of the effect of all or any of the following Regulations or, where specified, the relevant parts of the following Regulations shall be deemed to be a variation of the rights attaching to the Special Share and shall accordingly only be effective with the consent in writing of the Special Shareholder: (a) the definitions of "Government Director", "Special Share", "Special Shareholder" and "Zambia" in Regulation 1.1 and Regulation 1.1(2); (b) Regulation 2.7; (c) this Regulation 3; (d) Regulation 7.6; (e) Regulation 10.2 (f) Regulation 11.1; (g) Regulation 12.1; (h) Regulation 12.5; (i) Regulation 12.8; (j) the words in brackets in Regulations 13.1 and the third and fourth sentence of Regulation 13.2; (k) Regulation 15.1; (l) Regulation 17.1; (m) Regulation 18.1; (n) Regulation 18.2; (o) Regulation 18.5; (p) Regulation 18.6; and (q) Regulation 18.10. (2) (3) The Special Shareholder shall be entitled to convene, receive notice of and to attend at any General Meeting of the Company or any meeting of any class of shareholders of the Company, and to add items to the agenda thereof upon the giving of notice to the Company Secretary and to speak thereat, but the Special Share shall carry no right to vote, other than as specified in this Regulation, at any such meeting. (3) (4) The written consent of the Special Shareholder shall be required: (a) (a) to effect the taking or the permitting of the taking of any step to have the Company voluntarily wound up by its members or voluntarily to take advantage of any provisions of the Act or similar legislation in relation to winding up the Company; (b) (b) for a Change of Control, such approval not to be unreasonably withheld; (c) (c) for any material change in the nature of the Business; (d) (d) for the sale, transfer, lease, assignment or disposal (or any contract so to do) by the Company of its electricity transmission system or, alone or when aggregated with any other disposal or disposals forming part of or connected with the same or a connected transaction, a material part of the undertaking, property and/or assets of the Company (or any interest thereof) or contract so to do, otherwise than in the normal course of business or by way of mortgage or charge (such approval (a) not to be withheld where the disposal is by a mortgagee or chargee under a mortgage or charge given by JCo to lenders as security for loans taken out to finance the rehabilitation, development or expansion of the Business provided that thirty (30) days' notice has been provided to GRZ by the mortgagee or chargee of its intention to exercise its right to sell and (b) not to be unreasonably withheld in the case of other sale, transfer, lease, assignment or disposal (or any contract so to do)). Provided the approval rights specified in this Regulation 3.1(4) shall expire fifteen (15) years from the date upon which the Shareholders' Agreement was executed. (4) (5) The affirmative vote of the Special Shareholder shall be required in any members' resolution to change the locus of incorporation of the Company. (5) (6) In a distribution of capital in a winding up of the Company, the Special Shareholder shall be entitled to repayment of the capital paid up on the Special Share in priority to any other repayment of capital to any other member. The Special Share shall confer no other right to participate in the capital or profits of the Company. (6) (7) The Special Shareholder may require the Company to redeem the Special Share at nominal value at any time by written notice upon the Company and delivery of the share certificate. 4. Calls on SharesCalls on SharesCalls on Shares 4.1 4.1 (1) The Directors may make calls upon the members in respect of any money unpaid on the shares of the members (whether on account of the nominal value of the shares or by way of premium) and not by the terms of issue of those shares made payable at fixed times, except that no call shall be payable earlier than one (1) month from the date fixed for the payment of the last preceding call. (1) (2) Each member shall, upon receiving at least fourteen (14) days' notice specifying the time or times and place of payment, pay to the Company, at the time or times and place so specified the amount called on his shares. (2) (3) The Directors may revoke or postpone a call. 4.2 4.2 A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed and may be required to be paid by instalments. 4.3 4.3 The joint holders of a share are jointly and severally liable to pay all calls in respect of the share. 4.4 4.4 If a sum called in respect of a share is not paid before or on the day appointed for payment of the sum, the Person from whom the sum is due shall pay interest on the sum from the day appointed for payment of the sum to the time of actual payment at such rate not exceeding the prescribed rate of interest as the Directors determine, but the Directors may waive payment of that interest wholly or in part. 4.5 4.5 Any sum that, by the terms of issue of a share, becomes payable on allotment or at a fixed date, whether on account of the nominal value of the share or by way of premium, shall for the purposes of these Regulations be deemed to be a call duly made and payable on the date on which by the terms of issue the sum becomes payable, and, in case of non-payment, all the relevant provisions of these Regulations as to payment of interest and expenses, forfeiture or otherwise apply as if the sum had become payable by virtue of a call duly made and notified. 4.6 4.6 The Directors may, on the issue of shares, differentiate between the holders as to the amount of calls to be paid and the times of payment. 4.7 4.7 (1) The Directors may accept from a member the whole or a part of the amount unpaid on a share although no part of that amount has been called up. (1) (2) The Directors may authorise payment by the Company of interest upon the whole or any part of an amount so accepted, until the amount becomes payable, at a rate agreed upon between the Directors and the member paying the sum subject to sub-regulation (3). (2) (3) For the purposes of sub-regulation (2), the rate of interest shall not be greater than:- (a) if the Company has, by resolution, fixed a rate - the rate so fixed; and (b) in any other case - the prescribed rate of interest. 5. LienLienLien 5.1 5.1 (1) The Company has a first and paramount lien on every share (not being a fully paid share) for all money (whether presently payable or not) called or payable at a fixed time in respect of that share. (1) (2) The Company also has a first and paramount lien on all shares (other than fully paid shares) registered in the name of a sole holder for all money presently payable by him or his estate to the Company. (2) (3) The Directors may at any time exempt a share wholly or in part from the provisions of this Regulation. (3) (4) The Company's lien (if any) on a share extends to all dividends payable in respect of the share. 6. Forfeiture of Shares 6.1 6.1 (1) If a member fails to pay a call or instalment of a call on the day appointed for payment of the call or instalment, the Directors may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a notice on him requiring payment of so much of the call or instalments as is unpaid, together with any interest that has accrued. (1) (2) The notice shall name a further day (not earlier than the expiration of fourteen (14) days from the date of service of the notice) on or before which the payment required by the notice is to be made and shall state that, in the event of non-payment at or before the time appointed, the shares in respect of which the call was made will be liable to be forfeited. 6.2 6.2 (1) If the requirements of a notice served under Regulation 6.1 are not complied with, any share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect. (1) (2) Such a forfeiture shall include all dividends declared in respect of the forfeited shares and not actually paid before the forfeiture. 6.3 6.3 A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and, at any time before a sale or disposition, the forfeiture may be cancelled on such terms as the Directors think fit. 6.4 6.4 A Person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but shall remain liable to pay to the Company all money that, at the date of forfeiture, was payable by him to the Company in respect of the shares (including interest at the prescribed rate of interest from the date of forfeiture on the money for the time being unpaid if the Directors think fit to enforce payment of the interest), but his liability shall cease if and when the Company receives payment in full of all the money (including interest) so payable in respect of the shares. 6.5 6.5 A statement in writing declaring that the Person making the statement is a Director or a secretary of the Company, and that a share in the Company has been duly forfeited on a date stated in the statement, shall be prima facie evidence of the facts stated in the statement as against all Persons claiming to be entitled to the share. 6.6 6.6 (1) The Company may receive the consideration (if any) given for a forfeited share on any sale or disposition of the share and may execute a transfer of the share in favour of the Person to whom the share is sold or disposed of. (1) (2) Upon the execution of the transfer, the Company shall register the transferee as the holder of the share. (2) (3) The transferee shall not be bound to see to the application of any money paid as consideration. (3) (4) The title of the transferee to the share shall not be affected by any irregularity or invalidity in connection with the forfeiture, sale or disposal of the share. 6.7 6.7 The consideration referred in Regulation 6.6 shall be applied by the Company in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue (if any) shall (subject to any like lien for sums not presently payable that existed upon the shares before the sale) be paid to the Person entitled to the shares immediately before the transfer. 6.8 6.8 The provisions of these Regulations as to forfeiture shall apply in the case of non-payment of any sum that, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the nominal value of the shares or by way of premium, as if that sum had been payable by virtue of a call duly made and notified. 7. Transfer of Shares Transfer of Shares Transfer of Shares 7.1 7.1 (1) Subject to these Regulations, a member may transfer all or any of the shares by instrument, in writing, in a form prescribed for the purposes of Section fifty-seven of the Act or in any other form that the Directors approve. (1) (2) An instrument of transfer referred to in the above paragraph shall be executed by or on behalf of both the transferor and the transferee. 7.2 7.2 The instrument of transfer shall be left for registration at the registered office of the Company, together with such fee (if any) not exceeding two (2) monetary units as the Directors require, accompanied by the certificate of the shares to which it relates and such other information as the Directors properly require to show the right of the transferor to make the transfer, and thereupon the Company shall, subject to the powers vested in the Directors by these Regulations, register the transferee as a shareholder. 7.3 7.3 The Directors may decline to register a transfer of shares, not being fully paid shares, to a Person of whom they do not approve and may also decline to register any transfer of shares on which the Company has a lien. 7.4 7.4 The Directors may refuse to register any transfer that is not accompanied by the appropriate share certificate, unless the Company has not yet issued the share certificate or is bound to issue a renewal or copy of the share certificate. 7.5 7.5 The registration of transfers may be suspended at such times and for such periods as the Directors from time to time determine, provided that the periods do not exceed in the aggregate thirty (30) days in any year. 7.6 7.6 The Directors shall not, unless the prior written consent of the Special Shareholder (before such period as is specified in Regulation 3.1(d) expires) has been obtained, register any person as the holder of a Share if such registration would result in a Change of Control. The Directors shall in any case where they may consider it appropriate require such Person to provide such evidence or give such information as to the matters referred to in the declaration as they think fit. The Directors shall decline to register any Person or a holder of a Share if such declaration or information is not provided or given. 8. Transmission of SharesTransmission of SharesTransmission of Shares 8.1 In the case of the death of a member, the survivor where the deceased was a joint holder, and the legal personal representatives of the deceased where he was a sole holder, shall be the only Persons recognised by the Company as having any title to his interest in the shares, but this Regulation does not release the estate of a deceased joint holder from any liability in respect of a share that had been jointly held by him with other Persons. 8.2 8.2 (1) Subject to any written law relating to bankruptcy, a Person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such information being produced as is properly required by the Directors, elect either to be registered himself as holder of the share or to have some other Person nominated by him registered as the transferee of the share. (1) (2) If the Person becoming entitled elects to be registered himself, he shall deliver or send to the Company a notice in writing signed by him stating that he so elects. (2) (3) If he elects to have another Person registered, he shall execute a transfer of the share to that other Person. (3) (4) All the limitations, restrictions and provisions of these Regulations relating to the right to transfer, and the registration of the transfer of shares are applicable to any such notice or transfer as if the death or bankruptcy of the member had not occurred and the notice or transfer were a transfer signed by that member. 8.3 8.3 (1) Where the registered holder of a share dies or becomes bankrupt, his personal representatives or the trustee of his estate, as the case may be, shall be, upon the production of such information as is properly required by the Directors, entitled to the same dividends and other advantages, and to the same rights (whether in relation to meetings of the Company, or to voting or otherwise), as the registered holder would have been entitled to if he had not died or become bankrupt. (1) (2) Where two (2) or more Persons are jointly entitled to any share in consequence of the death of the registered holder, they shall, for the purposes of these Regulations, be deemed to be joint holders of the shares. 9. Alteration of CapitalAlteration of CapitalAlteration of Capital 9.1 Subject to Regulation 10, the Company may by resolution: (1) increase its authorised share capital by the creation of new shares of such amount as is specified in the resolution; (2) consolidate and divide all or any of its authorised share capital into shares of larger amount than its existing shares; (3) subdivide all or any of its shares into shares of smaller amount than is fixed by the certificate of share capital, but so that in the subdivision the proportion between the amount paid and the amount (if any) unpaid on each such share of a smaller amount is the same as it was in the case of the share from which the share of a smaller amount is derived; and (4) cancel shares that, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person or have been forfeited, and reduce its authorised share capital by the amount of the shares so cancelled. 9.2 Subject to the Act and Regulation 10, the Company may, by special resolution, reduce its share capital, any capital redemption reserve fund or any share premium account. 10. Restrictions on the Company's Activities Restrictions on the Company's Activities Restrictions on the Company's Activities 10.1 The Company shall not, without the prior written approval of the Directors representing the interests of Shareholders representing ninety per cent. (90%) in nominal value of the Shares: (1) reduce the authorised or issued share capital of the Company or consolidate, sub-divide, purchase, redeem or cancel any of such share capital or alter any rights pertaining to any share or class of shares in such capital or capitalise, or pay or otherwise distribute, any amount standing to the credit of any reserve of the Company or otherwise reorganise the share capital of the Company; (2) subject to Section two hundred and sixteen of the Act issue any share or security other than an Ordinary Share and the Special Share; (3) take or permit the taking of any step to have the Company voluntarily wound up by its members or voluntarily to take advantage of any provisions of the Act or similar legislation in relation to winding up the Company; (4) make any material change in the nature of the Business except where such change involves the development or expansion of the business; (5) consolidate, merge or amalgamate with any other Person; (6) acquire any subsidiary or otherwise acquire any shares, securities or other interests in any Company or business where in each case, the cost of such acquisition exceeds US$10,000,000 Provided that this Regulation will not apply to the acquisitions and investments required to rehabilitate, develop or expand the Business; (7) make any loan or advance or extend credit, otherwise than in the normal course of the Business; (8) give any guarantee or indemnity or create any Encumbrance over all or any of the undertaking, property, assets or uncalled share capital of the Company save for the purposes of financing the rehabilitation, development or expansion of Business; (9) subject to Section two hundred and sixteen of the Act, sell, transfer, lease, assign, or otherwise dispose of the Licences (or any of them) or its electricity transmission system or, alone or when aggregated with any other disposal or disposals forming part of or connected with the same or a connected transaction, a material part of the undertaking, property and/or assets of the Company (or any interest therein) or contract so to do, otherwise than in the normal course of the Business or by way of mortgage or charge (such approval (a) not to be withheld where the disposal is by a mortgagee or chargee under a mortgage or charge given by the Company to lenders as security for loans taken out to finance the rehabilitation, development or expansion of the Business, provided that thirty (30) days' notice has been provided to the Directors by the mortgagee or chargee of its intention to exercise its right to sell and (b) not to be unreasonably withheld in the case of other sale, transfer, lease, assignment or disposal (or any contract so to do); (10) change the dividend policy set out in Clause 15 of the Shareholders' Agreement. 11. General MeetingsGeneral MeetingsGeneral Meetings 11.1 11.1 (1) A Director (including the Government Director) may, whenever he thinks fit, convene a general meeting. (1) (2) If no Director is present within Zambia, any two (2) members may convene a general meeting in the same manner, or as nearly as possible, as that in which such meetings may be convened by a Director. (2) (3) A general meeting shall be held in Zambia unless all the members entitled to vote at that meeting agree in writing to a meeting at a place outside Zambia. 11.2 11.2 (1) A notice of a general meeting shall be given twenty one (21) clear days before the proposed date of the general meeting and shall specify the place, the day and the hour of meeting and, except as provided by sub-regulation (2), shall state the general nature of the business to be transacted at the meeting. (1) (2) It shall not be necessary for a notice of an annual general meeting to state that the business to be transacted at the meeting includes the declaring of a dividend, the consideration of annual accounts and the reports of the Directors and auditors, the election of Directors in the place of those retiring or the appointment and fixing of the remuneration of the auditors. 12. Proceedings at General MeetingsProceedings at General MeetingsProceedings at General Meetings 12.1 12.1 (1) No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. The quorum necessary for the transaction of business shall be ZCCM (for so long as it holds at least ten per cent. (10%) in nominal value of the then issued shares), the Special Shareholder and one (1) other Shareholder. In calculating the number of Shares which it holds from time to time the Shares held by ZCCM shall be aggregated with those of its Affiliate(s). If ZCCM so ceases to hold ten per cent. (10%) in nominal value of the then issued Shares, the quorum shall be the Special Shareholder and two (2) other Shareholders. (1) (2) For the purpose of determining whether a quorum is present, a person attending as a proxy, or as representing a body corporate or association that is a member, shall be deemed to be a member. 12.2 12.2 If a quorum is not present within an hour after the time appointed for the meeting: (1) where the meeting was convened upon the requisition of members - the meeting shall be dissolved; or (2) in any other case if a quorum is not present at the adjourned meeting within an hour after the time appointed for the meeting: (a) (a) any two (2) members shall constitute a quorum; or (b) (b) the meeting shall be dissolved, if two (2) members are not present, provided that if a meeting is so convened after an adjourned meeting no amendments shall be permitted to the agenda. 12.3 12.3 (1) If the Directors have elected one (1) of their number as chairman of their meetings, he shall preside as chairman at every general meeting. (1) (2) Where a general meeting is held and: (a) (a) a chairman has not been elected as provided by sub-regulation (1); or (b) (b) the chairman is not present within fifteen (15) minutes after the time appointed for the holding of the meeting or is unwilling to act; the members present shall elect one of their number to be chairman of the meeting. 12.4 12.4 (1) The chairman may with the consent of any meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no tfrom which the adjournment took place. (1) (2) When a meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. (2) (3) Except as provided by sub-regulation (2), it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. 12.5 12.5 (1) At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded: (a) by the chairman; (b) by at least three (3) members present in person or by proxy; (c) by a member or members present in person or by proxy and representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; (d) by a member or members holding shares in the Company conferring a right to vote at the meeting being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right; or (e) by the Special Shareholder. (2) (2) The demand for a poll may be withdrawn. 12.6 12.6 (1) If a poll is duly demanded, it shall be taken in such manner and (subject to sub-regulation (2)) either at once or after an interval or adjournment or otherwise as the chairman directs, and the result of the poll shall be the resolution of the meeting at which the poll was demanded. (1) (2) A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. 12.7 12.7 In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded shall have a casting vote in addition to his deliberative vote (if any). 12.8 12.8 (1) Subject to any rights or restrictions for the time being attached to any share at meetings of members: (a) (a) each: (i) (i) registered member (other than the Special Shareholder, except where expressly provided in these Regulations); (ii) (ii) Person on whom the ownership of a share of such a registered member has evolved by operation of law; (iii)(iii) proxy or attorney of a Person referred to in paragraph (i) or (ii), if the Person is not present at the meeting; shall be entitled to vote; (b) (b) on a show of hands, each Person present (other than the Special Shareholder, except where expressly provided in these Regulations) who is entitled to vote shall have one vote; and (c) (c) on a poll, every Person present (other than the Special Shareholder, except where expressly provided in these Regulations) who is entitled to vote shall have votes in accordance with Section one hundred and forty seven of the Act. 12.9 12.9 In the case of joint holders, the vote of the senior who tenders a vote, whether in person or by proxy or by attorney, shall be accepted to the exclusion of the votes of the other joint holders and, for this purpose, seniority shall be determined by the order in which the names stand in the register of members. 12.1012.10 If a member is of unsound mind or is a person whose person or estate is liable to be dealt with in any way under the law relating to mental health, his committee or trustee or such other Person as properly has the management of his estate may exercise any rights of the member in relation to a general meeting as if the committee, trustee or other person were the member. 12.1112.11 A member shall not be entitled to vote at a general meeting unless all calls and other sums presently payable by him in respect of shares in the Company have been paid. 12.1212.12 (1) An objection may be raised to the qualification of a voter only at the meeting or adjourned meeting at which the vote objected to is given or tendered. (1) (2) Any such objection shall be referred to the chairman of the meeting, whose decision shall be final. (2) (3) A vote not disallowed pursuant to such an objection shall be valid for all purposes. 12.1312.13 (1) An instrument appointing a proxy shall be in writing under the hand of the appointer or of his attorney duly authorised in writing or, if the appointer is a body corporate, either under seal or under the hand of an officer or attorney duly authorised. (1) (2) An instrument appointing a proxy may specify the manner in which the proxy is to vote in respect of a particular resolution and, where an instrument of proxy so provides the proxy shall not be entitled to vote in the resolution except as specified in the instrument. (2) An instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. (3) A proxy need not be a member of the company. (4) An instrument appointing a proxy shall be in the following form or in as similar a form as the circumstances allow: ------------------------------------------- (name of Company) I/we........................................................................... of............................................................................. being a member/members of the above named Company, hereby appoint............. ............................................................................... ............................................................................... of............................................................................. ............or, in his absence,................................................. ..........................................of..................................as my/our proxy to vote for me/us on my/our behalf at the annual/extraordinary general meeting of the Company to be held on the ..................... day of 19.... and at any adjournment of that meeting: *in favour of/ against resolution No.......................................... *in favour of/ against resolution No.......................................... *in favour of/ against resolution No.......................................... Unless otherwise instructed, the proxy will vote as he thinks fit. Signed................................................................. Date................................................................... *Strike out whichever is not desired. 12.1412.14 An instrument appointing a proxy shall not be treated as valid unless the instrument, and the power of attorney or other authority (if any) under which the instrument is signed or a notarially certified copy of that power or authority, is or are deposited, not less than forty-eight (48) hours before the time for holding the meeting or adjourned meeting at which the Person named in the instrument proposes to vote, or, in the case of a poll, not less than twenty-four (24) hours before the time appointed for the taking of the poll, at the registered office of the Company or at such other place in Zambia as is specified for that purpose in the notice convening the meeting. 12.1512.15 A vote given in accordance with the terms of an instrument of proxy or of a power of attorney shall be valid notwithstanding the previous death or unsoundness of mind of the principal, the revocation of the instrument (or of the authority under which the instrument was executed) or of the power, or the transfer of the share in respect of which the instrument or power is given, unless notice in writing of the death, unsoundness of mind, revocation or transfer has been received by the Company at the registered office before the commencement of the meeting or adjourned meeting at which the instrument is used or the power is exercised. 13. DirectorsDirectorsDirectors 13.1 The Board shall comprise not more than eleven (11) Directors (of which one (1) Director at any one time must be a Government Director appointed by the Special Shareholder in accordance with Regulation 13.2 below). 13.2 A Shareholder shall, from time to time have the exclusive right to appoint, remove or replace one Director for each whole ten per cent. (10%) of the then issued Shares in nominal value which it then owns. Each whole ten per cent (10%) holding shall be referred to herein as the "Qualifying Threshold". The Director(s) appointed by ZCCM and the Special Shareholder shall be a resident of Zambia for the purposes of Section two hundred and eight of the Companies Act. In calculating the number of Shares which it then owns, a Shareholder shall be entitled to aggregate its own holding of Shares with those Shares held by an Affiliate. The Special Shareholder shall have the exclusive right to appoint, remove and replace one (1) Director as aforesaid. If and whenever a Shareholder ceases to own Shares equal to the Qualifying threshold which gives rise to an entitlement to appoint a director, or disposes of a number of Shares which leads it to drop below a Qualifying Threshold for the appointment of an additional Director, it shall procure the resignation and removal from the board of the relevant Director(s) appointed by it by reference to the Qualifying Threshold. The identity of the Director(s) resigning shall be determined by the Shareholder Concerned. As part of such resignation, such Shareholder shall procure that, on resigning, each and every such Director shall deliver to the Company an executed letter in the form of a deed, acknowledging that he has no claim outstanding of any nature whatsoever against the Company whether for Director's fees or compensation for wrongful dismissal or unfair dismissal or entitlement to any redundancy or in respect of any other monies or benefits due to him from the Company arising out of such resignation. 13.3 Any appointment or removal of a director shall be made by notice in writing served on the Company and signed by the Persons appointing or removing the director. In the case of a corporation the notice may be signed on its behalf by a director or the secretary of the Company or by its duly appointed attorney or duly authorised representative. 13.4 The Directors shall not be subject to retirement by rotation. Subject to the Act and Regulation 13.2, Directors shall be appointed by a resolution of the Directors. 13.5 Subject to the Act and Regulation 13.2, a Director shall not be required to be a citizen or resident of any particular country or to hold any shares of the Company by way of qualification. A Director who is not a member of the Company shall nevertheless be entitled to attend and speak at General Meetings. A Director may be called upon, and shall forthwith comply in writing, to disclose any information required to be disclosed by these presents. 13.6 The Directors shall repay to any Director all such reasonable expenses as he may incur in attending and returning from meetings of the Directors or of any committee of the Directors or General Meetings or otherwise in or about the business of the Company. 13.7 The Directors shall have power to pay and agree to pay pensions or other retirement, superannuation, death or disability benefits to (or to any Person in respect of) any Director or ex-Director who may hold or have held any executive office or any office or place of profit under the Company or any of its subsidiaries and for the purposes of providing such pensions or other benefits to contribute to any scheme or fund or to pay instruments. 13.8 No Director shall be entitled to Director's fees unless otherwise agreed by the Shareholders who are party to the Shareholders' Agreement. 14. Retirement of Directors Retirement of DirectorsRetirement of DirectorsRetirement of Directors 14.1 The office of a Director shall be vacated in any of the following events, namely: (1) If he shall become prohibited by the Act from acting as a Director. (2) If he shall resign by writing under his hand left at the registered office of the Company or if he shall tender his resignation and the Directors shall resolve to accept the same. (3) If he shall have a receiving order made against him or shall compound with his creditors generally. (4) If in Zambia or elsewhere an order shall be made by any court claiming jurisdiction in that behalf on the ground (however formulated) of mental disorder for his detention or for the appointment of a guardian or for the appointment of a receiver or other person (by whatever name called) to exercise powers with respect to his property or affairs. (5) If he shall be removed from office pursuant to Regulation 13.2 or Section two hundred and eleven of the Act, but so that if he holds an appointment to an executive office which thereby automatically determines such removal shall be deemed an act of the Company and shall have effect without prejudice to any claim for damages for breach of any contract or otherwise between him and the Company. 14.2 In addition to the circumstances in which the office of a Director becomes vacant by virtue of the Act, the office of a Director shall become vacant if the Director makes any arrangement or composition with his creditors generally. 15. Alternate DirectorsAlternate DirectorsAlternate Directors 15.1 In accordance with the Act, any Director (including the Government Director) may at any time by writing under his hand and deposited at the registered office of the Company, or delivered at a meeting of the Directors, appoint any person who is not a Director to be his alternate Director and may in like manner at any time terminate such appointment. Such appointment, unless previously approved by the Directors, shall have effect only upon and subject to being so approved. 15.2 The appointment of an alternate Director shall determine on the happening of any event specified in Section two hundred and thirteen of the Act. 15.3 An alternate Director shall be entitled to receive notices of meetings of the Directors and shall be entitled to attend and vote as a Director at any such meeting at which the Director for whom he is appointed an alternate is not personally present and generally at such meeting to perform all the functions of a Director and for the purposes of the proceedings at such meeting the provisions of these presents shall apply as if he (instead of the Director for whom he is appointed an alternate) were a Director. If the Director for whom he is appointed an alternate is temporarily unable to act through ill-health or disability his signature to any resolution in writing of the Directors shall be as effective as the signature of the Director for whom he is appointed an alternate. To such extent as the Directors may from time determine in relation to any committee of the Directors foregoing provisions of this paragraph shall also apply mutatis mutandis to any meeting of any such committee of which the Director for whom he is appointed an alternate is a member. 15.4 An alternate Director shall be entitled to contract and be interested in and benefit from contracts or arrangements or transactions and to be repaid expenses and to be indemnified to the same extent mutatis mutandis as if he were a Director but he shall not be entitled to receive from the Company in respect of his appointment as alternate Director any remuneration except only such part (if any) of the remuneration otherwise payable to the Director for whom he is appointed an alternate as such Director may be notice in writing to the Company from time to time direct. 16. Borrowing powersBorrowing powersBorrowing powers 16.1 Subject to Regulation 10, the Directors may exercise the powers of the Company to borrow money, to charge any property or business of the Company or all, or any of its uncalled capital and to issue debentures or give any other security for a debt, liability or obligation of the Company or of any other Person. 17. Delegation of Directors PowersDelegation of Directors PowersDelegation of Directors Powers 17.1 The Directors may delegate any of their powers to any committee consisting of two (2) or more directors save that any director appointed by ZCCM and the Government Director shall be entitled to be represented on such committee(s). The Directors may (with the consent of the director appointed by ZCCM and the Government Director) also delegate to any managing director or any director holding any other executive office or Chief Executive such of their powers as they consider desirable to be exercised by him. Any such delegation may be made subject to any condition the Directors may impose, and either collaterally with or to the exclusion of their own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee with two (2) or more members shall be governed by the Regulations regulating the proceedings of directors so far as they are capable of applying. 17.2 All acts done by a meeting of directors, or of a committee of directors, or by a Person acting as a director shall, notwithstanding that it be afterwards discovered that there was a defect in the appointment of any director or that any of them were disqualified from holding office, or had vacated office, or were not entitled to vote, be as valid as if every such Person had been duly appointed and was qualified and had continued to be a director and had been entitled to vote. 18. Proceedings of DirectorsProceedings of DirectorsProceedings of Directors 18.1 Subject to the provisions of the Regulations, the directors may regulate their proceedings as they think fit. A Director may, and the secretary at the request of a Director shall, call a meeting of the Directors. The Government Director may circulate or add items to any agenda of a meeting of the Board. Questions arising at a meeting shall be decided by a majority of affirmative votes. Each Director (other than the Government Director save where expressly provided in these Regulations) shall have one (1) vote. The Chairman may, if the Directors so determine, have a casting vote pursuant to Regulation 18.10. 18.2 At a meeting of Directors, the quorum shall be the Government Director and two other directors appointed by the members. Provided that, for so long as ZCCM has a right to appoint a Director(s) pursuant to Regulation 13.2, the quorum shall be a Director appointed by ZCCM, the Government Director and one Director appointed by the bidder. A Person who holds office only as an alternate director shall, if his appointer is not present, be counted in the quorum. 18.3 In the event of a quorum not being present for whatever reason, the meeting of Directors shall be adjourned for two (2) days (or such shorter period as a quorum of Directors agree) and, when reconvened, the Directors then present shall constitute a quorum Provided that, if a meeting is so reconvened, no changes to the agenda will be permitted. Under no circumstances will the Board be entitled to transact any business whatsoever if the quorum is not present. 18.4 In the event of a vacancy or vacancies in the office of a Director or offices of Directors, the remaining Directors may act but, if the number of remaining Directors is not sufficient to constitute a quorum at a meeting of Directors, they may act only for the purpose of increasing the number of Directors (if permitted to do so) to a number sufficient to constitute such a quorum or of convening a general meeting of the Company. 18.5 A director (other than the Government Director) shall be counted in the quorum present at a meeting in relation to a resolution on which he is not entitled to vote. 18.6 The Company may by ordinary resolution suspend or relax to any extent, either generally or in respect of any particular matter, any provision of the Regulations prohibiting a director from voting at a meeting of directors or of a committee of directors, save that any such suspension or relaxation of Regulation 23(2) will require the consent of the Director(s) appointed by ZCCM and the Government Director. 18.7 Where proposals are under consideration concerning the appointment of two (2) or more directors to offices or employments with the Company or any body corporate in which the Company is interested the proposals may be divided and considered in relation to each director separately and (provided he is not for another reason precluded from voting) each of the directors concerned shall be entitled to vote and be counted in the quorum in respect of each resolution except that concerning his own appointment. 18.8 If a question arises at a meeting of directors or of a committee of directors as to the right of a director to vote, the question may, before the conclusion of the meeting, be referred to the chairman of the meeting and his ruling in relation to any director other than himself shall be final and conclusive. 18.9 The provisions of subsection (7) of Section two hundred and eighteen of the Act (providing that a Director who is materially interested in a contract or arrangement to be considered at a meeting of the company or of the Directors should not be counted in the quorum or vote on the matter) may be suspended or relaxed, whether generally or in respect of a particular transaction, by a resolution of the Company. 18.10The Directors may appoint one (1) of their number to be the chairman of the board of directors and may at any time remove him from that office save that the affirmative vote of the Government Director shall be required if the proposed Chairman is to be a director who is not a Zambian national and unless the Directors determine otherwise, the Chairman may not also hold the office of Chief Executive. Unless he is unwilling to do so, the director so appointed shall preside at every meeting of directors at which he is present. But if there is no director holding that office, or if the director holding it is unwilling to preside or is not present within five (5) minutes after the time appointed for the meeting, the directors present may appoint one (1) of their number to be chairman of the meeting. The Chairman shall have one (1) additional vote as a casting vote if, on a vote of the Directors, the number of votes for a board resolution equals the votes against such resolution. 18.11A resolution in writing signed by all the directors entitled to receive notice of a meeting of directors or of a committee of directors shall be as valid and effectual as if it had been passed at a meeting of directors or (as the case may be) a committee of directors duly convened and held and may consist of several documents in the like form each signed by one (1) or more directors; but a resolution signed by an alternate director need not also be signed by his appointor and, if it is signed by a director who has appointed an alternate director, it need not be signed by the alternate director in that capacity. 18.12Meetings of the Directors at which a quorum is present shall be held at least once every three (3) months. 18.13Not less than twenty (20) clear Business Days prior written notice of each and any meeting of the Directors shall be given to the Directors unless all the Directors agree otherwise in writing, accompanied by a written agenda, specifying the business of such meeting unless all the Director agree otherwise in writing. No business shall be transacted at any meeting of the Board except for that business specified in the agenda for such meeting. Exhibit B-96 18.14A request for agenda items shall be made to each Director by the Secretary no less than seven (7) clear Business Days or such other period as all the Directors may agreed in writing before the notice convening the meeting is sent to each Director and any item requested to be placed on the agenda by any Director shall be so placed by the Secretary. 18.15There shall be submitted to the Directors for their approval at the meeting of Directors to be held in the final three (3) months of a calendar year, a work plan and budget in respect of the Business for the next succeeding calendar year. 18.16Any Director or his alternate Director may validly participate in a meeting of the Directors through the medium of conference telephone or similar form of communication equipment provided that all Directors or alternate Directors participating in the meeting are able to hear and speak to each other throughout the meeting. A Director or alternate Director so participating shall be deemed to be present in person at the meeting and shall accordingly be counted in a quorum and be entitled to vote. Subject to the Act, all business transacted in such manner by the Directors shall for the purposes of these Regulations be deemed to be validly and effectively transacted at a meeting of the Directors notwithstanding that fewer than two (2) Directors or alternate Directors are physically present at the same place. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the Chairman of the meeting then is. 19. Managing DirectorManaging DirectorManaging Director 19.1 19.1 (1) The Directors may, upon such terms and conditions and with such restrictions as they think fit, appoint or remove a Managing Director in accordance with the Act and (subject to Regulation 17.1) confer upon him any of the powers exercisable by them. (1) (2) Any powers so conferred may be concurrent with, but shall not be to the exclusion of the powers of the Directors. (2) (3) The Directors may at any time withdraw or vary any of the powers so conferred on a Managing Director. 20. Chief Executive Chief Executive Chief Executive (1) The Directors may, upon such terms and conditions and with such restrictions as they think fit, appoint or remove a Person as Chief Executive Officer who shall (subject to Regulation 17.1) have such responsibility as the Directors shall determine. The Chief Executive may not also hold office as Chairman. If not a Director, the Chief Executive shall be entitled to receive notice of, attend and be heard at meetings of the Directors but shall not be entitled to vote. The Chief Executive shall not be authorised to appoint the senior management of the Company which shall be the responsibility of the Board of Directors and which shall comprise the Chief Executive, an Operations Director, a Finance Director and two other Directors. (2) The Chief Executive Officer shall, at all times, be subject to the supervision and direction of the Directors. 21. SecretarySecretarySecretary A secretary of the Company shall hold office on such terms and conditions, as to remuneration and otherwise, as the Directors determine. 22. SealSealSeal 22.1 The Directors shall provide for the safe custody of the seal. 22.2 The seal shall be used only by the authority of the Directors, or of a committee of the Directors authorised by the Directors to authorise the use of the seal, and every document to which the seal is affixed shall be signed by a Director and be countersigned by another Director, a secretary or another Person appointed by the Directors to countersign that document or a class of documents in which that document is included. 23. Contracts with AffiliatesContracts with AffiliatesContracts with Affiliates 23.1 This Regulation is in addition to the provisions of Section two hundred and eighteen of the Act. 23.2 A holder of Shares and a Director shall (in its capacity as a holder of Shares and/or in his capacity as a Director) not be entitled to vote at any meeting of the Company or the Directors convened and held in connection with: (1) the approval by the Company or the Directors (as the case may be) of any matter, action, agreement or arrangement in or to which (as applicable) the holder (or, as appropriate the holder represented by such Director) or any of its Affiliates is an interested party; and (2) any revision or amendment to, or waiver of any rights under or pursuant to, a matter, an action, an agreement or an arrangement of the type referred to in Paragraph (a) of this Regulation. 23.3 Each holder shall (and shall procure that each Director appointed by it shall) disclose the relevant interest, in writing, before any such meeting to the Company and/or to the Directors (as the case may be). 23.4 In the event that a proposal is put to the Directors that the Company enter into a contract or other arrangement with an Affiliate of a holder (other than an Affiliate of ZCCM), the holder whose Affiliate is so concerned (the "Affiliate Shareholder"), shall (at the meeting of the Company or the Directors (or a committee thereof) at which this contract or arrangement is to be considered and/or at which a resolution is to be put that the Company or the Directors (as the case may be) enter into the same) procure the Director(s) will: (1) identify whether or not, in such Affiliate Shareholder's opinion, such contract or arrangement is on Arms' Length Terms and provide all reasonable information requested by the Board; and (2) refrain from voting on a resolution concerning such contract or arrangement; 23.5 If the Company or the Directors determine that such contract or arrangement is not on Arms' Length Terms, the Shareholder(s) (other than the Affiliate Shareholder(s)) shall procure that the notice is given to such Affiliate and the Affiliate Shareholder of the terms the Company or the Directors consider to be Arms' Length Terms. 23.6 Upon receipt of the Company or the Directors' notice, that the Affiliate Shareholder shall procure the Affiliate: (1) terminate the contract or arrangement agreement; or (2) renegotiate the contract or arrangement using the terms determined by the Company or the Directors; (3) if the Affiliate Shareholder disagrees with the terms so considered by the Company or the Directors to be Arms' Length Terms, refer the matter to a Sole Expert in accordance with Clause 27 of the Shareholders' Agreement (which Clause 27 shall be incorporated in these Regulations mutatis mutandis) for a determination of what are Arms' Length Terms in the particular circumstances. 23.7 Upon receipt of the Sole Expert's determination, the Affiliate Shareholder may renegotiate the contract or arrangement to embody those terms determined by the Sole Expert to be Arms' Length Terms or terminate the contract or arrangement (if conditionally entered into). 24. Inspection of RecordsInspection of RecordsInspection of Records Subject to the Act, the Directors shall determine whether and to what extent, and at what time and places and under what conditions, the accounting records and other documents of the Company or any of them will be open to the inspection of members other than Directors, and a member other than a Director shall not have the right to inspect any document of the company except as provided by law or authorised by the Directors or by a resolution of the Company. 25. Dividends and ReservesDividends and ReservesDividends and Reserves 25.1 25.1 (1) The Company by resolution may declare a dividend if, and only if, the Directors have recommended a dividend. (1) (2) A dividend shall not exceed the amount recommended by the Directors. 25.2 25.2 The Directors may authorise the payment by the Company to the members of such interim dividends as appear to the Directors to be justified by the profits of the Company. 25.3 25.3 Interest shall not be payable by the Company in respect of any dividend. 25.4 25.4 A dividend shall not be paid except out of profits or retained earnings of the Company. 25.5 25.5 (1) The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as reserves, to be applied at the discretion of the Directors, for any purpose for which the profits of the Company may be properly applied. (1) (2) Pending any such application, the reserves may, at the discretion of the Directors, be used in the business of the Company or be invested in such investments as the Directors think fit. (2) (3) The Directors may carry forward so much of the profits remaining as they consider ought not to be distributed as dividends without transferring those profits to a reserve. 25.6 25.6 (1) Subject to the rights of Persons (if any) entitled to shares with special rights as to dividend, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect of which the dividends is paid. (1) (2) All dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid, but, if any share is issued on terms providing that it will rank for dividend as from a particular date, that share shall rank for dividend accordingly. (2) (3) An amount paid or credited as paid on a share in advance of a call shall not be taken for the purposes of this regulation to be paid or credited as paid on the share. 25.7 25.7 The Directors may deduct from any dividend payable to a member all sums of money (if any) presently payable by him to the Company on account of calls or otherwise in relation to shares in the Company. 25.8 25.8 (1) If the Company declares a dividend it may by resolution direct the Directors to pay the dividend wholly or partly by the distribution of specific assets, including paid up shares in, or debentures of, any other corporation. (1) (2) Where a difficulty arises in regard to such a distribution, the Directors may settle the matter as they consider expedient and in particular may issue fractional certificates and fix the value for distribution of the specific assets or any part of those assets, and may determine that cash payments will be made to any members on the basis of the value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as the Directors consider expedient. 25.9 25.9 (1) Any dividend, interest or other money payable in cash in respect of shares may be paid by cheque sent through the post directed to: (a) the registered address of the holder or, in the case of joint holders, to the registered address of the joint holder named first in the register of members; or (b) to such other address as the holder or joint holders in writing directs or direct. (2) Any one (1) of two (2) or more joint holders may give effectual receipts for any dividends, interests or other money payable in respect of the shares held by them as joint holders. 26. Capitalisation of ProfitsCapitalisation of ProfitsCapitalisation of Profits 26.1 26.1 (1) Subject to sub-regulation (2), the Company may resolve: (a) to capitalise any sum, being the whole or a part of the amount for the time being standing to the credit of any reserve account or the profit and loss account or otherwise available for distribution to members; and (b) to apply the sum, in any of the ways mentioned in sub-regulation (3), for the benefit of members in the proportions to which those members would have been entitled in a distribution of that sum by way of dividend. (2) The Company shall not pass a resolution under sub-regulation (1) unless it has been recommended by the Directors. (3) The ways in which a sum may be applied for the benefit of members under sub-regulation (1) shall be: (a) in paying up any amounts unpaid on shares held by members; (b) in paying up in full unissued shares or debentures to be issued to members as fully paid; or (c) partly under paragraph (a) and partly under paragraph (b). (4) The Directors shall do all things necessary to give effect to the resolution and, in particular, to the extent necessary to adjust the rights of the members among themselves, may (a) issue fractional certificates or make cash payments in cases where shares or debentures become issuable in fractions; and (b) authorise any Person to make, on behalf of all the members entitled to any further shares or debentures upon the capitalisation, an agreement with the Company providing for the issue to them, credited as fully paid up, of any such further shares or debentures or for the paying up by the company on their behalf of the amounts or any part of the amounts remaining unpaid on their existing shares by the application of their respective proportions of the sum resolved to be capitalised; and any agreement made under an authority referred to in paragraph (b) shall be effective and binding on all the members concerned. 27. Winding UpWinding UpWinding Up 27.1 27.1 (1) If the Company is wound up, the liquidator may, with the sanction of a special resolution, divide among the members in kind the whole or any part of the property of the Company and may for that purpose set such value as he considers fair upon any property to be so divided and may determine how the division is to be carried out as between the members or different classes of members. (1) (2) The liquidator may, with the sanction of a special resolution, vest the whole or any part of any such property in trustees upon such trusts for the benefit of the contributories, as the liquidator thinks fit, but so that no member is compelled to accept any shares or other securities in respect of which there is any liability. 28. IndemnityIndemnityIndemnity 28.1 Every officer, auditor or agent of the Company shall be indemnified out of the property of the Company against any liability incurred by him in his capacity as officer, auditor or agent in defending any proceedings, whether civil or criminal, in which judgement is given in his favour or in which he is acquitted or in connection with any application in relation to any such proceedings in which relief is under the Act granted to him by the court. 29. Weighted VotingWeighted VotingWeighted Voting For as long as it (together with its Affiliates) own at least ten (10) per cent. of the Shares, ZCCM shall have such number of votes as exceeds by one vote the number of votes required to be cast whether on a show of hands or a poll or a resolution in writing: (1) to pass a resolution for the appointment as a director of itself or any other person as a nominee for him or her; (2) to defeat a proposal for a resolution for the removal from office as a director of itself or any other person as a nominee of itself who holds this position in conformity with Regulation 13.2; or (3) to defeat a proposal for a resolution for the deletion or alteration of: (a) this Regulation; (b) the definition of "ZCCM" in Regulation 1.1 and Regulation 1.1(2); (c) Regulations 2.3 to 2.5; (d) Regulation 10; (e) Regulation 11.1 (f) Regulation 12.1; (g) Regulation 13; (h) Regulation 17.1; (i) Regulations 18, 19 and 20; and (j) Regulation 23 or the cancellation or alteration of these Regulations (or any other act) which would have the same or a similar effect. EX-99 40 EOS PAX I, S.L. CERT. OF INCORP. CERTIFICATE OF INCORPORATION WITH RESPECT TO EOS PAX I, SL The underdesigned, Cesar Rodriguez, attorney-at-law, officiating under Oviedo's Bar Association, declares that: 1.- EOS PAX I, SL,hereinafter referred to as: "The Company"-is a company with limited liability, organised under the laws of Spain, having its registered office at calle Galeras 17, 3rd floor, Santiago de Compostela 1575, Spain, and having its offices at such place, and being registered in the Mercantile Register of Coruna, under number G-16912. 2.- according to the registration of the aforementioned Mercantile Register, the articles of association of the Company have most recently been amended by deed on the 30th March 1998, executed before D. Gabriel Baleriola Lucas civil law notary, officiating in Madrid. The articles of association have not been amended since; 3.- according to article 2 of the recent articles of association of the Company, the objects of the Company is the construction, installation and development of electrical energy production site, specially through exploitation of Wind Farms. The listed activities can be developed indirectly, total or partially, through the participation in other companies, with analogous or identical object. 4.- The company can give securities for debts of group-companies and of its shareholders. 5.- the company can hold shares / participations in, manage and finance these enterprises. 6.- according to the registration of the aforementioned Mercantile Register, the following natural persons are directors of the Company: a) Mr. Francisco Rausell Solari, born on 16 December 1952, married, of Spanish nationality, residing at calle Padre Claret, 6, 7(0) B, Madrid. b) Mr. Derek John Spencer, born on 29 May 1941, married, of British nationality, residing at Paseo de la Castellana, n(0) 23, Esc.1(a), 1(0) de Madrid. c) Mr. Albert Malcolm Harrison, born on 15 November 1998, married, of British nationality, residing at Rosecot, Coton Road, Nether Whitacre, Warwickshire, U.K. d) Mr. Shigehito Nakamura, adult of age, married, of Japanish nationality, residing at 4-30-22, Fukuei, Ichikawa-shi, Chiba-ken, 272-0137, Japan. e) Mr. Yoshimichi Matsuura, adult of age, of Japanish nationality, residing in Avenida Diagonal, Barcelona, Spain. f) Mr. Akira Amano, adult of age, of Japanish Nationality. 7.- according to the registration of the aforementioned Mercantile Register, the following natural person is managing director of the Company: Mr. Yoshimichi Matsuura. Signed at Madrid on March 29, 1999 Fdo. Cesar Rodriguez Fdo. Derek John Spencer EX-99 41 EOS PAX II, S.L. CERT. OF INCORP. CERTIFICATE OF INCORPORATION WITH RESPECT TO EOS PAX IIa, SL The underdesigned, Cesar Rodriguez, attorney-at-law, officiating under Oviedo's Bar Association, declares that: 1.- EOS PAX IIa, SL,hereinafter referred to as: "The Company"-is a company with limited liability, organised under the laws of Spain, having its registered office at calle Galeras 17, 3rd floor, Santiago de Compostela 1575, Spain, and having its offices at such place, and being registered in the Mercantile Register of Coruna, under number G-16912. 2.- according to the registration of the aforementioned Mercantile Register, the articles of association of the Company have most recently been amended by deed on the 30th March 1998, executed before D. Gabriel Baleriola Lucas civil law notary, officiating in Madrid. The articles of association have not been amended since; 3.- according to article 2 of the recent articles of association of the Company, the objects of the Company is the construction, installation and development of electrical energy production site, specially through exploitation of Wind Farms. The listed activities can be developed indirectly, total or partially, through the participation in other companies, with analogous or identical object. 4.- The company can give securities for debts of group-companies and of its shareholders. 5.- the company can hold shares / participations in, manage and finance these enterprises. 6.- according to the registration of the aforementioned Mercantile Register, the following natural persons are directors of the Company: a) Mr.Francisco Rausell Solari, born on 16 December 1952, married, of Spanish nationality, residing at calle Padre Claret, 6, 7(0) B, Madrid. b) Mr. Derek John Spencer, born on 29 May 1941, married, of British nationality, residing at Paseo de la Castellana, n(0) 23, Esc.1(a), 1(0) de Madrid. c) Mr. Albert Malcolm Harrison, born on 15 November 1998, married, of British nationality, residing at Rosecot, Coton Road, Nether Whitacre, Warwickshire, U.K. d) Mr. Shigehito Nakamura, adult of age, married, of Japanish nationality, residing at 4-30-22, Fukuei, Ichikawa-shi, Chiba-ken, 272-0137, Japan. e) Mr. Yoshimichi Matsuura, adult of age, of Japanish nationality, residing in Avenida Diagonal, Barcelona, Spain. f) Mr. Akira Amano, adult of age, of Japanish Nationality. 7.- according to the registration of the aforementioned Mercantile Register, the following natural person is managing director of the Company: Mr. Yoshimichi Matsuura. Signed at Madrid on March 29, 1999 Fdo. Cesar Rodriguez Fdo. Derek John Spencer EX-99 42 EOS PAX II, S.L. CERT. OF INCORP. CERTIFICATE OF INCORPORATION WITH RESPECT TO EOS PAX IIa, SL The underdesigned, Cesar Rodriguez, attorney-at-law, officiating under Oviedo's Bar Association, declares that: 1.- EOS PAX IIa, SL,hereinafter referred to as: "The Company"-is a company with limited liability, organised under the laws of Spain, having its registered office at calle Galeras 17, 3rd floor, Santiago de Compostela 1575, Spain, and having its offices at such place, and being registered in the Mercantile Register of Coruna, under number G-16912. 2.- according to the registration of the aforementioned Mercantile Register, the articles of association of the Company have most recently been amended by deed on the 30th March 1998, executed before D. Gabriel Baleriola Lucas civil law notary, officiating in Madrid. The articles of association have not been amended since; 3.- according to article 2 of the recent articles of association of the Company, the objects of the Company is the construction, installation and development of electrical energy production site, specially through exploitation of Wind Farms. The listed activities can be developed indirectly, total or partially, through the participation in other companies, with analogous or identical object. 4.- The company can give securities for debts of group-companies and of its shareholders. 5.- the company can hold shares / participations in, manage and finance these enterprises. 6.- according to the registration of the aforementioned Mercantile Register, the following natural persons are directors of the Company: a) Mr.Francisco Rausell Solari, born on 16 December 1952, married, of Spanish nationality, residing at calle Padre Claret, 6, 7(0) B, Madrid. b) Mr. Derek John Spencer, born on 29 May 1941, married, of British nationality, residing at Paseo de la Castellana, n(0) 23, Esc.1(a), 1(0) de Madrid. c) Mr. Albert Malcolm Harrison, born on 15 November 1998, married, of British nationality, residing at Rosecot, Coton Road, Nether Whitacre, Warwickshire, U.K. d) Mr. Shigehito Nakamura, adult of age, married, of Japanish nationality, residing at 4-30-22, Fukuei, Ichikawa-shi, Chiba-ken, 272-0137, Japan. e) Mr. Yoshimichi Matsuura, adult of age, of Japanish nationality, residing in Avenida Diagonal, Barcelona, Spain. f) Mr. Akira Amano, adult of age, of Japanish Nationality. 7.- according to the registration of the aforementioned Mercantile Register, the following natural person is managing director of the Company: Mr. Yoshimichi Matsuura. Signed at Madrid on March 29, 1999 Fdo. Cesar Rodriguez Fdo. Derek John Spencer EX-99 43 CRISA ARTICLES OF INCORPORATION ARTICLES OF ASSOCIATION OF CONSTRUCCIONES Y REPRESENTACIONES INDUSTRIALES, S A Article 1 The company will continue to be called "Construcciones y Representaciones Industriales, S.A.". Article 2 The company's objects are the construction, installation, development, production and subsequent distribution of electrical energy . The said activities can be carried out indirectly, totally or in part, through participation in other companies with similar or identical objects. Article 3 The registered office of the company is situated in Madrid, Paseo de la Castellana, 23, Esc. I, Planta 1a. The Board of Directors is empowered to change the company's registered office within the same municipal area, as well as the opening, closure or movement of branches to any location in the country. Article 4 The duration of the company is indefinite and will cease by agreement of the Extraordinary Shareholders' Meeting and according to the provisions of the current mercantile legislation. Article 5 The share capital is fixed at Ptas. 36,000,000 (thirty-six million pesetas) divided into 90,000 (ninety thousand) bearer shares, of the same class and series, with a nominal value of Ptas. 400 (four hundred pesetas) each, numbered consecutively from 1 to 43,000, both inclusive, totally subscribed and paid up. The representative titles of the shares can be multiple titles. Article 6 The shares in which the company capital have been divided will be cut in books containing at least that which is required by law and each one will be signed by the Managing Director of the company whose signature will be reproduced by mechanical means and will be contain the company stamp. Article 7 The shares will be indivisible from the Company, which does not recognise more than one owner for each share. The joint owners of one share must be represented in respect of company matters by only one person. Article 8 The possession of one or more shares requires adherence to the company's Articles of Association as well as to the resolutions arising from the shareholders' meetings or the meetings of the Board of Directors which have been legally constituted and without prejudice to their right to object and, in such case, the right to separate from the company. For all legal and judicial matters the shareholders will be considered to be domiciled in Madrid and subject to the jurisdiction of their Courts with observance, in such case, to the jurisdiction specified in law. Article 9 The shareholders, constituted at a General Meeting, will decide by majority those matters within the competence of the meeting. All shareholders, including the dissenters and those not present at the meeting, will be bound by the resolutions of the shareholders' meeting without prejudice to their right in law to oppose those resolutions. The Ordinary Shareholders' Meeting must take place within the first six months of each accounting year, to review the company's business, to adopt, if appropriate, the accounts of the previous year and resolve the distribution of the profits. All meetings not included within the specifications of the previous paragraph will be considered to be Extraordinary Shareholders' Meetings. The General Meeting convened as an ordinary meeting will be empowered to discuss and make decisions on any matter within its competence included in the notice and provided that any legal requirements are adhered to. The General Meeting will be held at the company's registered office and on the date indicated in the notice with an option to extend its meeting to one or more days hence. The Universal General Meeting, which requires the attendance of all shareholders, may be held at any location. Article 10 The Ordinary or Extraordinary General Meetings at the first or second calling, or in both, being at least 24 hours apart, will be announced in the BORME and in one of the province's newspapers with a high circulation rate at least 15 days before the date fixed for the meeting stating the date of the meeting and all matters to be discussed within it. For any other matter, the notice will conform to the requirements set out in law. To validly constitute a Universal Meeting according to the provisions of Article 99 of the law the share capital present at the meeting must, if the resolutions arising from the matters under discussion are to be legally constituted, possess the required powers to make such a decision and in the case of a representative being present in place of a shareholder, they must have proper written authority from the said shareholder and understanding of the matters to be discussed in the meeting before any decision can be adopted. The Board of Directors will call the Ordinary and Extraordinary Meetings within the legal time when they deem it appropriate or when shareholders who hold at least five percent of the share capital request it and having had regard to all the appropriate requirements in law. The notice will proceed according to the law. Article 11 The General Meeting, whether Ordinary or Extraordinary, will be validly constituted at the first calling when the shareholders present or represented possess at least twenty-five per cent of the subscribed capital with the right to vote. At the second calling the meeting will be validly constituted whatever the represented share capital might be. Article 12 The legal right to attend the meeting and any document which represents that right shall conform to the law. The spouse, descendent or older relative of a shareholder may represent the said shareholder at the General Meeting through powers which are granted in general terms; such powers would also be applied to any other representative of the said shareholder even if specific mention is not made as to their powers to assist as long as the representative can prove that those powers are valid, in accordance with Article 1.280 of the Civil Code. The right to obtain information may be exercised according to the law. Article 13 The General Meeting will be chaired by the President of the Board of Directors assisted in each case by a Secretary nominated by the shareholders present at the meeting, without prejudice to the certified and executive powers that correspond to the said meeting. In case of absence, the President or Secretary will be appointed from among the shareholders present at the meeting. The decision will be understood to have been adopted when the majority of the present or represented capital at the meeting vote in favour of that proposed by the President. As an exception, when the proposed resolution refers to the issue of debentures, the increase or decrease of share capital, the transformation, merger of sub-division of the company or any other modification to the Articles of Association and the meeting has been constituted with present or represented shareholders who represent less than fifty per cent of the subscribed capital and with the right to vote, the resolution will be formally adopted if there is a favourable vote of two-thirds of the present or represented share capital at the meeting. Article 14 The Minutes of the Meeting, drawn up in accordance with the legal requirements, may be approved by the meeting itself at its conclusion or otherwise by the President and two auditors, one representing the majority and the other the minority, within fifteen days from the said meeting. The notarised Minutes must conform to the provisions set out in law. Article 15 The Secretary of the Board of Directors has the power to certify the Minutes which contain the resolutions of the meeting. Article 16 The adoption of the resolutions and the drawing up of the corresponding deed can be executed by anyone empowered to certify, according to the provisions set out in the previous Article, and whose written appointment is current or who is acting by proxy with powers conferred by the Board of Directors. The adoption of the resolutions and the drawing up of the corresponding deed will be undertaken by using as a base the Minutes or Minute Book, by notarised testimony of the same, certification of the resolutions or by authorised copy of the notarised Minutes in each case. Article 17 - BOARD OF DIRECTORS The management, administration and representation of the company for legal or other purposes and in all matters within the Company Objects are the responsibility of the Board of Directors acting jointly and without prejudice to the delegation and powers that the Board can confer. COMPOSITION AND APPOINTMENT OF DIRECTORS - The Board of Directors will comprise three Directors, who are not required to be shareholders except in the case of a provisional appointment by "cooptacion" effected by the Board itself according to the provisions of Article 138 of the Consolidated Text. DURATION OF OFFICE - The Directors will be appointed for a five year term but can be re-elected by the Board one or more times and for periods of the same duration. Article 18 - MEETINGS OF THE BOARD OF DIRECTORS. AGREEMENT ADOPTION The Board of Directors will meet when the Company's interests so require and of necessity within the first month of each financial year to draw up the accounts from the previous financial year and to produce a management report, and whenever a General Meeting has to be called. The meeting of the Board of Directors must also take place, by necessity, at least once every three months. An absolute majority of the Directors present at the meeting is required for the adoption of a resolution. Voting in writing without attending will only be accepted if no Director opposes such a procedure. Article 19 - POWERS OF THE BOARD OF DIRECTORS The representation of the Board of Directors will extend to all matters included within the company objects and all that attaches thereto and in general the representation of the Company in legal proceedings and other matters that correspond to the Board, with full powers to contract and fulfil all types of obligatory acts and business of ordinary or extraordinary administration and exerting rigorous control with respect to all kinds of assets, property, securities and commercial documents. Therefore, and merely as an example, the powers of the Board of Directors will include the following: (a) To represent the Company in all matters, acts and any matter of a mercantile, civil, administrative, judicial or of any other nature, without prejudice to the delegations and powers set out in these Articles or conferred on the Board of Directors itself or in the execution of its duties. (b) To manage and administer the company business. (b) To agree all manner of acts, matters of legal disposal and administration including the constitution, acquisition, transfer, deferment and termination of all classes of contracts. (c) To collect and pay by any means whatever sum is due or owed to the Company. (d) To sign, lease, endorse, accept, guarantee, pay, collect, negotiate and audit bills of exchange and other transfer documents, to formulate the accounts, request notes for default of acceptance and payment. (e) To manage the company and to act on behalf of the Company in all classes of contracts and financial and banking operations, to open, maintain and cancel deposit, current or any other form of account and terminate loan contracts, to open credit accounts, modify, extend, renew and cancel the same, to transfer funds using whatever form of transfer document or other procedure for the movement of money, to approve balances, to compensate accounts, to effect and cancel guarantees. (f) To acquire and transmit by any means, credits, public debts, mortgage titles, notes, obligations, bonds, company shares, shares in Collective Investment Institutions and, in general, value titles, mercantile matters and public or private financial and monetary assets; to acquire or to transmit the same with retrocession agreement; to tax, administer and look after the same; to effect collections and payments by account of the principal, dividends, interest or returns; to depose their conversion, exchange, stamped or amortized; exercise rights of acquisition or preferential subscription, acquire or transmit the same; accept or exercise option rights. (g) To exercise all manner of claims, exceptions, oppositions and appeals by any means, as well as to waive, compromise or submit one or other to arbitration of right or equity. (h) To propose, appoint, and dismiss employees of the Company, assigning to them duties, salaries and bonuses and other suitable employment conditions, and drawing up employment contracts accordingly. (i) To confer powers of all kinds, including the power to act for others who have conferred the said power to act upon the Company where it deems appropriate. It is reiterated that the above list is not exhaustive, acting merely as an example and it is understood that the Board of Directors will have all those powers that are not reserved exclusively for the General Meeting. Article 20 - REMUNERATION OF THE DIRECTORS The members of the Board of Directors will have the right to claim expenses in the sum of 87.167 pesetas for each attendance at a Board Meeting, or the larger sum which can be claimed as expenses incurred whilst in the performance of his duty. Article 21 The financial year will coincide with the official calendar year and will close on 31st December. Article 22 The annual accounts and management report, as well as where applicable the auditor's review, will conform to the legal requirements and will be filed in the Mercantile Register. No later than three months after the financial year end the Board of Directors will formulate and sign the annual accounts and the remaining documents hereinbefore indicated and should the accounts not be signed, the reason for that omission must be given. The shareholders will have the right to obtain a copy of the documents hereinbefore referred to and in general those submitted to the Board for approval, as well as the auditor's report. This right must be indicated in the notice. Article 23 Any alteration to the Articles of Association, increase or reduction of the share capital, issue of bonds, transformation, merger or sub-division of the Company, and dissolution and liquidation must conform with the legal and statutory requirements in each case. The resolutions relating to individual and concrete actions which are not included in the company's objects will be justified if they accord with the provisions of Articles 103 and 144 of the law; however the dissenters and represented shareholders maintain the right to oppose them. Such a resolution will not require statutory modification. Article 25 The Board of Directors will serve as the liquidator. Article 26 Where not expressly stated the regulations of the Private Limited Company, Commercial Code and Mercantile Register Regulations will apply. Also, the regulations conforming with the principles of the Mercantile Register will apply, being supplemental to the clauses and paragraphs herein but which have not been included due to the limited nature of these Articles. Madrid, 23 December 1992 Modified: 20 September 1996 EX-99 44 VENDRESSE LIMITED MEMO AND ARTICLES OF INCORP Company number: 72437 Memorandum and Articles of Association of Vendresse Limited* A private company limited by shares adopting Table A with modifications Incorporated in the Isle of Man under the Companies Acts 1931 - 1993 On the 2nd day of March 1995 * The name of the Company was changed (1) from Midlandspower (Isle of Man) Limited to Midlands Power (Isle of Man) Limited recorded by Approval of Change of Name of a Company certificate dated 27 April 1995, and (2) from Midlands Power (Isle of Man) Limited to Vendresse Limited recorded by Approval of Change of Name of a Company certificate dated 28 September 1995. The Companies Acts 1931 - 1993 ------- Isle of Man ------- Private company limited by shares ------- Memorandum of Association of Vendresse Limited 1. The name of the Company is Vendresse Limited*. 2. The Company is a private Company. 3. The liability of the members is limited. 4. There are no restrictions on the exercise of the rights, powers and privileges of the Company. 5. The share capital of the company is(pound)2,000 divided into 2,000 shares of(pound)1.00 each. We, the Subscriber to this Memorandum of Association:- (a) wish to be formed into a Company pursuant to this Memorandum; (b) agree to take the number of shares shown opposite our respective names; (c) declare that all the requirements of the Companies Acts 1931 - 1993 in respect of matters relating to registration and of matters precedent and incidental thereto have been complied with. - -------- * The name of the Company was changed (1) from Midlandspower (Isle of Man) Limited to Midlands Power (Isle of Man) Limited recorded by Approval of Change of Name of a Company certificate dated 27 April 1995, and (2) from Midlands Power (Isle of Man) Limited to Vendresse Limited recorded by Approval of Change of Name of a Company certificate dated 28 September 1995. Names, address and Number of shares taken Number description of Subscriber by each Subscriber 1. Calchas Limited One Heritage Court 41 Athol Street DOUGLAS Isle of Man For and on behalf of Calchas Limited Director Total number of shares taken ... One Dated this 2nd day of March 1995 Witness to the above Signatures:- Julie Cunningham Heritage Court 41 Athol Street DOUGLAS Isle of Man The Companies Acts 1931 - 1993 ------- Isle of Man ------- Private company limited by shares ------- Articles of Association of Vendresse Limited* Preliminary 1. Subject as hereinafter provided, the Regulations as prescribed by Section 7 of the Companies Act 1986 and contained in Table A of the Companies (Memorandum and Articles of Association) regulations 1988 (hereinafter referred to as "Table A") shall apply to the Company. 2. Regulations 2, 24, 73, 74, 75, 76, 77, 78, 79, 80 and 118 of Table A shall not apply to the Company, but the articles hereinafter contained and the remaining regulations of Table A, subject to the modifications hereinafter expressed, shall constitute the articles of association of the Company. Private company 3. The Company is a "Private Company" within the meaning of the Companies Act 1986 and accordingly no invitation shall be issued to the public to subscribe for any shares, debentures or debenture stock of the Company. Shares 4. Subject to the provisions of any resolution creating any new shares, the shares of the original or any new capital of the Company, may be issued, allotted or otherwise disposed of to such persons and for such consideration and upon such terms and with such preferred, deferred or other special rights or restrictions as the Board may determine. Subject as aforesaid the provisions of these Articles shall apply to any new capital in the same manner in all respects as the original capital of the company. Except as provided by the Act no shares shall be issued at a discount. Any preference shares may be issued on the terms that they are, or at the option of the Company are to be, liable to be redeemed and such redemption may, subject to the provisions of Section 46 of the Companies Act 1931, as amended by the Section 30 of the Companies Act 1982, be effected on such terms and in such manner as the Board may from time to time determine. 5. The shares shall be at the disposal of the directors, and they may allot or otherwise dispose of them to such persons at such times and generally on such terms and conditions as they think proper, subject always to article 4 hereof and provided no shares shall be issued at a discount except as provided by the Companies Act 1931, Section 47. General meetings and resolutions 6. (a) The Company shall in each year hold a General Meeting as its Annual General Meeting in addition to any other meetings in that year and not more than fifteen months shall elapse between the date of one Annual General Meeting of the Company and the next, provided that so long as the company holds it first Annual General Meeting within eighteen months of its incorporation, it need not hold it in the calendar year of its incorporation or in the following calendar year. (b) Regulation 38 in Table A shall be read and construed as if the words "or removing" were added after the word "appointing" in the first sentence. (c) A notice convening a General Meeting shall be required to specify the general nature of the business to be transacted only in the case of special business and regulation 38 in Table A shall be modified accordingly. All business shall be deemed special that is transacted at an Extraordinary General Meeting, and also all that is transacted at an Annual General Meeting, with the exception of declaring a dividend, the consideration of the accounts, balance sheets, and the reports of the Directors and Auditors, and the appointment of, and the fixing of the remuneration of, the Auditors. Appointment of directors 7. (a) The maximum number of Directors may be determined from time to time by Ordinary Resolution in General Meeting of the Company. Subject to and in default of any such determination there shall be no maximum number of Directors and the minimum number of Directors shall be two. (b) The Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number determined in accordance with paragraph (a) above as the maximum number of Directors for the time being force. (c) The Company may by Ordinary Resolution in General Meeting remove any Director before the expiration of his period of office notwithstanding any other provision contained in these Articles or in any agreement between the Company and such Director. The removal of a Director pursuant to this Article shall be without prejudice to any claim he may have for damages for breach of any contract of service between him and the Company. (d) The Company may by Ordinary resolution in General Meeting appoint any person who is willing to act to be a Director, either to fill a vacancy or as an additional Director. (e) The control and management of the business of the Company shall be at such place as the Directors shall determine from time to time. (f) All directors of the Company shall be entitled to receive prior notice of meetings of Directors. Such notice can be given by telephone, telex and telefax or any of these. Borrowing powers 8. The Directors may exercise all the powers of the Company to borrow money without limit as to amount and upon such terms and in such manner as they think fit, and to grant any mortgage, charge or standard security over its undertaking, property and uncalled capital, or any part thereof, and to issue debentures, debenture stock, and other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. Alternate directors 9. (a) A Director, or any such other person as is mentioned in regulation 65 in Table A, may act as an alternate Director to represent more than one Director, and an alternate Director shall be entitled at any meeting of the Directors or of any committee of the Directors to one vote for every Director whom he represents in addition to his own vote (if any) as a Director, but he shall count only as one vote for the purpose of determining whether a quorum is present. (b) An alternate Director shall not be entitled as such to receive any remuneration from the Company, save that he may be paid by the Company such part (if any) of the remuneration otherwise payable to his appointer as such appointer may notice in writing to the Company from time to time direct, and the first sentence of regulation 66 in Table A shall be modified accordingly. Indemnity 10. Every Director or other officer of the Company shall be entitled to be indemnified out of the assets of the Company against all losses or liabilities which he may sustain or incur in or about the execution of the duties of his office or otherwise in relation thereto, and no Director or other officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the execution of the duties of his office or in relation thereto, but this Article shall not have effect insofar as its provisions are not avoided by Section 151 of the Companies Act 1931. The Directors may execute, in the name and on behalf of the Company, in favour of any Director or other person who may incur or be about to incur any personal liability for the benefit of the Company, such debentures or mortgages of the Company's property (present and future) as they think fit and any such mortgages may contain a power of sale and such other powers, covenants and provisions as shall be agreed upon. Audit 11. (i) Section 11(1) of the Companies Act 1982 and all such other provisions of the Companies Acts 1931 to 1993 as require the accounts of the company to be audited before being laid before the members in general meeting shall not apply to the Company so long as the Company shall be an exempt company for the purposes of the Income Tax (Exempt Companies) Act 1984 or a non-resident company for the purposes of the Non-Resident Company Duty Act 1986 or an audit exempt company for the purposes of the Companies (Exempt and Non-Resident Private Companies)(Audit Exemption) (Amendment) Regulations 1994 and this article shall hereby constitute an election in accordance with Regulation 3(1) of Companies (Exempt and Non-Resident Private Companies)(Audit Exemption) Regulations 1993 for the purposes of dispensing with the requirements for any such audit requirements. (ii) A member may at anytime by notice in writing deposited at the registered office of he company require the rescission of this election. (iii) The Directors shall within 21 days from the date of the deposit of such notice as in sub clause (ii) hereof - (a) appoint an auditor in the same manner as they may fill a casual vacancy in the office of auditor; and (b) proceed duly to convene a general meeting of the company to effect such amendments to these articles as are necessary as a consequence of the notice. - -------- * The name of the Company was changed (1) from Midlandspower (Isle of Man) Limited to Midlands Power (Isle of Man) Limited recorded by Approval of Change of Name of a Company certificate dated 27 April 1995, and (2) from Midlands Power (Isle of Man) Limited to Vendresse Limited recorded by Approval of Change of Name of a Company certificate dated 28 September 1995. Number Names, addresses and description of Subscriber 1. Calchas Limited Heritage Court 41 Athol Street DOUGLAS Isle of Man For and on behalf of Calchas Limited Director Dated this 2nd day of March 1995 Witness to the above Signatures:- Julie Cunningham Heritage Court 41 Athol Street DOUGLAS Isle of Man EX-99 45 STARTEKOR INVESTEERINGUTE OU STMT. OF INCORP. STATEMENT OF INCORPORATION WITH RESPECT TO STARTEKOR INVESTEERINGUTE OU 1. Startekor Investeeringute OU - hereinafter referred to as: the "Company" - is a private company with limited liability, organised under the laws of the Estonia, having its registered office at Tallinn, the Republic of Estonia, and having its offices at Parnu mnt. 10, Tallinn 10148, the Republic of Estonia, and being registered in the Commercial Register under number 10465839; the Company has been registered at the Commercial Register on July 6,1998; 2. according to the registration of the aforementioned Commercial Register, the articles of association of the Company have most recently been amended by shareholders resolution, on November 9, 1998. The articles of association have not been amended since; 3. according to article 2 of the English translation of the recent articles of association of the Company, the objects of the Company are: The objects of the company are investment in AS Narva Elektrivork and the management of such investment; and activities which are auxiliary to the purpose set forth above. 4. accordingto the registration of the Commercial Register, the following natural persons are the members of the board of directors of the Company: - William Andrew John Poulton, place of residence: Worcestershire, U.K., date of birth 09.09.1957, of British nationality; Martin Simovart, place of residence: Tallinn, Republic of Estonia, date of birth 08.12.1970, of Estonian nationality. Correct as at January 1, 1999 Peeter Lepik Attorney at law Law Office of Lepik & Luhaaar EX-99 46 NARVA ELEKTRIVORK STATEMENT OF INCORPORATION STATEMENT OF INCORPORATION WITH RESPECT TO AS NARVA ELEKTRIVORK 1. AS Narva Elektrivork - hereinafter referred to as: the "Company" - is a private company with limited liability, organised under the laws of the Estonia, having its registered office at Narva, the Republic of Estonia, and having its offices at Kerese 11, Narva, the Republic of Estonia, and being registered in the Commercial Register under number 10266399; the Company has been registered at the Commercial Register on September 4,1997; according to the registration of the aforementioned Commercial Register, the articles of association of the Company have most recently been amended by shareholders resolution, on November 9, 1998. The articles of association have not been amended since; 2. according to article 1.3 of the English translation of the recent articles of association of the Company, the objects of the Company are: 3. The objects of the company are the provision of electrical energy to consumers in its service area; the purchase, distribution and sale of electrical energy; the projection, construction, exploitation, control and maintain of the electrical equipment; activities of transportation, services, commerce, computer technology, communication, mediation and activities of foreign economy in order to achieve the primary goals; education and development; the supervision of the usage of electrical energy; the repair of measuring equipment; in accordance with the contracts, the provision of services through exploitation and repair works of the main network. In addition the Company shall be entitled to perform transactions that are directly or indirectly necessary for operation in the Company's fields of operation. 4. according to the registration of the Commercial Register, the following natural person is the member of the board of directors of the Company: Rein Annik, place of residence: Narva, Republic of Estonia, date of birth 19.06.1935, of Estonian nationality. Correct as at 1 January, 1999 Peeter Lepik Attorney at law Law Office of Lepik & Luhaaar EX-23 47 AUDITOR'S CONSENT CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Cinergy Corp. Annual Report (Form U5S) to the Securities and Exchange Commission, filed pursuant to the Public Utility Holding Company Act of 1935, for the year ended December 31, 1998, of our report dated January 28, 1999, on the consolidated financial statements of Cinergy Corp. and subsidiaries and of certain of its subsidiaries (The Cincinnati Gas & Electric Company, PSI Energy, Inc. and The Union Light, Heat and Power Company), included in the combined Annual Report (Form 10-K) to the Securities and Exchange Commission of Cinergy Corp. and its subsidiaries and of certain of its subsidiaries for the year ended December 31, 1998. It should be noted that we have performed no audit procedures subsequent to January 28, 1999, the date of our report. Furthermore, we have not audited any financial statements of Cinergy Corp. and its subsidiaries as of any date or for any period subsequent to December 31, 1998. Arthur Andersen LLP Cincinnati, Ohio April 30, 1999 EX-99 48 FINANCIAL STATEMENTS
CINERGY CORP. CONSOLIDATING STATEMENTS OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1998 (dollars in thousands, except per share amounts) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Energy, Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/ --------------------------------------------------------------- OPERATING REVENUES Electric Non-affiliated companies $ - $ - $2,378,431 $2,361,229 Affiliated companies - 412,409 74,261 41,809 Gas Non-affiliated companies - - 401,893 - Affiliated companies - - 1,538 - Other - - - - ----------- ------------ ------------------ ------------- - 412,409 2,856,123 2,403,038 OPERATING EXPENSES Fuel used in electric production - - 338,639 381,363 Purchased and exchanged power Non-affiliated companies - - 1,029,601 1,094,061 Affiliated companies - - 38,896 72,087 Gas purchased - - 199,683 - Other operation and maintenance 6,980 397,249 392,841 509,138 Depreciation and amortization - 3,131 191,109 130,604 Taxes other than income taxes 445 11,869 217,691 54,541 ----------- ------------ ------------------ ------------- 7,425 412,249 2,408,460 2,241,794 OPERATING INCOME (LOSS) (7,425) 160 447,663 161,244 EQUITY IN EARNINGS OF CONSOLIDATED SUBSIDIARIES 298,660 - - - EQUITY IN EARNINGS OF UNCONSOLIDATED SUBSIDIARIES (2,913) - - - OTHER INCOME AND (EXPENSE) - NET (8,122) 424 (1,291) 3,300 INTEREST 37,919 919 102,238 89,359 ----------- ------------ ------------------ ------------- INCOME (LOSS) BEFORE TAXES 242,281 (335) 344,134 75,185 INCOME TAXES (18,687) (335) 128,322 23,147 PREFERRED DIVIDEND REQUIREMENTS OF SUBSIDIARIES - - - - ----------- ------------ ------------------ ------------- NET INCOME (LOSS) $260,968 $- $215,812 $52,038 PREFERRED DIVIDEND REQUIREMENT - - 858 5,659 ----------- ------------ ------------------ ------------- INCOME APPLICABLE TO COMMON STOCK $260,968 $- $214,954 $46,379 AVERAGE COMMON SHARES OUTSTANDING EARNINGS PER COMMON SHARE EARNINGS PER COMMON SHARE - ASSUMING DILUTION DIVIDENDS DECLARED PER COMMON SHARE 1/ See accompanying consolidating statement of income (loss).
CINERGY CORP. CONSOLIDATING STATEMENTS OF INCOME (C0NTINUED) FOR THE YEAR ENDED DECEMBER 31, 1998 (dollars in thousands, except per share amounts) Consolidated Consolidated Cinergy Cinergy Consolidated Investments, Inc. 1/ Global Resources, Inc. Eliminations Cinergy Corp. ------------------------------------------------------------------------- OPERATING REVENUES Electric Non-affiliated companies $ - $7,575 $ - $4,747,235 Affiliated companies - - (528,479) - Gas Non-affiliated companies 658,771 - - 1,060,664 Affiliated companies - - (1,538) - Other 67,236 1,159 - 68,395 ----------- ------------------- ---------- ----------- 726,007 8,734 (530,017) 5,876,294 OPERATING EXPENSES Fuel used in electric production - 2,659 - 722,661 Purchased and exchanged power Non-affiliated companies - - - 2,123,662 Affiliated companies - - (110,983) - Gas purchased 657,287 - 40 857,010 Other operation and maintenance 88,765 16,010 (404,601) 1,006,382 Depreciation and amortization 2,308 1,494 (3,131) 325,515 Taxes other than income taxes 1,155 72 (11,138) 274,635 --------------- ------------------- ---------- ----------- 749,515 20,235 (529,813) 5,309,865 OPERATING INCOME (LOSS) (23,508) (11,501) (204) 566,429 EQUITY IN EARNINGS OF CONSOLIDATED SUBSIDIARIES - - (298,660) - EQUITY IN EARNINGS OF UNCONSOLIDATED SUBSIDIARIES (4,122) 55,606 2,913 51,484 OTHER INCOME AND (EXPENSE) - NET 2,173 22,797 (8,935) 10,346 INTEREST 1,960 20,667 (9,475) 243,587 ---------------- ------------------- ---------- ----------- INCOME BEFORE TAXES (27,417) 46,235 (295,411) 384,672 INCOME TAXES (12,053) (3,543) 336 117,187 PREFERRED DIVIDEND REQUIREMENTS OF SUBSIDIARIES - - 6,517 6,517 ---------------- ------------------- ---------- ----------- NET INCOME (LOSS) ($15,364) $49,778 ($302,264) $260,968 PREFERRED DIVIDEND REQUIREMENT - - (6,517) - ---------------- ------------------- ---------- ----------- INCOME APPLICABLE TO COMMON STOCK ($15,364) $49,778 ($295,747) $260,968 AVERAGE COMMON SHARES OUTSTANDING 158,238 EARNINGS PER COMMON SHARE $1.65 EARNINGS PER COMMON SHARE - ASSUMING DILUTION $1.65 DIVIDENDS DECLARED PER COMMON SHARE $1.80 1/ See accompanying consolidating statement of income (loss).
CINERGY CORP. CONSOLIDATING BALANCE SHEET DECEMBER 31, 1998 (dollars in thousands) Consolidated Cinergy Cinergy The Cincinnati Gas Corp. Services, Inc. & Electric Company 1/ ----------------------------------------------------- ASSETS CURRENT ASSETS Cash and temporary cash investments $ 10,971 $ 38 $ 26,989 Restricted deposits - - 1,173 Notes receivable - (9) - Notes receivable from affiliated companies 3,870 14,767 84,358 Accounts receivable - net 899 131 205,060 Accounts receivable from affiliated companies 2,086 29,344 22,635 Materials, supplies, and fuel - at average cost - - 115,294 Prepayments and other 2,042 50 40,158 Energy risk management assets - - 484,500 ------------- -------------- --------------------- 19,868 44,321 980,167 UTILITY PLANT - ORIGINAL COST In service Electric - - 4,806,958 Gas - - 786,188 Common - - 186,364 ------------- -------------- --------------------- - - 5,779,510 Accumulated depreciation - - 2,147,298 ------------- -------------- --------------------- - - 3,632,212 Construction work in progress - - 119,993 ------------- -------------- --------------------- Total utility plant - - 3,752,205 OTHER ASSETS Regulatory assets - - 627,035 Investments in consolidated subsidiaries 3,231,965 - - Investments in unconsolidated subsidiaries (6,853) - - Other 43,221 43,695 100,061 ------------- -------------- --------------------- 3,268,333 43,695 727,096 $ 3,288,201 $ 88,016 $ 5,459,468 1/ See accompanying consolidating balance sheets.
CINERGY CORP. CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1998 (dollars in thousands) Consolidated Consolidated Consolidated Cinergy Cinergy PSI Energy, Investments, Global Resources Consolidated Inc. Inc. 1/ Inc. 1/ Eliminations Cinergy Corp. ------------------------------------------------------------------------------- ASSETS CURRENT ASSETS Cash and temporary cash investments $ 18,788 $ 27,952 $ 15,416 $ - $100,154 Restricted deposits 2,414 - - - 3,587 Notes receivable 73 - - - 64 Notes receivable from affiliated companies 17,024 - - (120,019) - Accounts receivable - net 225,449 126,381 21,911 474 580,305 Accounts receivable from affiliated companies 384 7,231 45,394 (107,074) - Materials, supplies, and fuel - at average cost 80,445 4,156 3,413 (561) 202,747 Prepayments and other 31,461 1,270 (132) - 74,849 Energy risk management assets 484,500 - - - 969,000 -------------- ------------- ----------------- -------------- ----------- 860,538 166,990 86,002 (227,180) 1,930,706 UTILITY PLANT - ORIGINAL COST In service Electric 4,415,303 - - - 9,222,261 Gas - - - - 786,188 Common - - - - 186,364 -------------- ------------- ----------------- -------------- ---------- 4,415,303 - - - 10,194,813 Accumulated depreciation 1,892,949 - - - 4,040,247 -------------- ------------- ----------------- -------------- ---------- 2,522,354 - - - 6,154,566 Construction work in progress 69,891 - - (1) 189,883 -------------- ------------- ----------------- -------------- ---------- Total utility plant 2,592,245 - - (1) 6,344,449 OTHER ASSETS Regulatory assets 343,731 - - 1 970,767 Investments in consolidated subsidiaries - - - (3,231,965) - Investments in unconsolidated subsidiaries - 8,524 565,877 6,853 574,401 Other 93,012 58,673 144,245 (4,435) 478,472 -------------- ------------- ----------------- -------------- ---------- 436,743 67,197 710,122 (3,229,546) 2,023,640 $ 3,889,526 $ 234,187 $ 796,124 $ (3,456,727) $10,298,795 1/ See accompanying consolidating balance sheets.
CINERGY CORP. CONSOLIDATING BALANCE SHEET DECEMBER 31, 1998 (dollars in thousands) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Energy, Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/ ------------- -------------- -------------------- -------------- LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable $ 8,061 $ 30,801 $ 282,743 $ 217,959 Accounts payable to affiliated companies 16,244 - 13,166 30,145 Accrued taxes 16,536 2,577 151,455 58,901 Accrued interest 1,300 - 20,571 28,335 Notes payable and other short-term obligations 505,000 - 189,283 173,162 Notes payable to affiliated companies - 53 17,020 102,946 Long-term debt due within one year - - 130,000 6,000 Energy risk management liabilities - - 558,573 558,573 Other - - 26,422 2,227 ------------- -------------- -------------------- -------------- 547,141 33,431 1,389,233 1,178,248 NON-CURRENT LIABILITIES Long-term debt 199,913 - 1,219,778 1,025,659 Deferred income taxes (308) (27,312) 771,145 364,049 Unamortized investment tax credits - - 110,801 45,956 Accrued pension and other postretirement benefit costs - 8,424 146,361 112,387 Other 224 72,735 134,990 115,656 ------------- -------------- -------------------- -------------- 199,829 53,847 2,383,075 1,663,707 Total Liabilities 746,970 87,278 3,772,308 2,841,955 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption - - 20,717 71,923 COMMON STOCK EQUITY Common stock 1,587 - - - Common stock of subsidiaries - - 762,136 539 Paid-in capital 1,595,237 - 553,926 410,739 Retained earnings (deficit) 945,214 1,532 351,505 564,865 Accumulated other comprehensive income (loss) (807) (794) (1,124) (495) ------------- -------------- -------------------- -------------- Total common stock equity 2,541,231 738 1,666,443 975,648 $ 3,288,201 $ 88,016 $ 5,459,468 $ 3,889,526
CINERGY CORP. CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1998 (dollars in thousands) Consolidated Consolidated Cinergy Cinergy Investments, Global Resources Consolidated Inc. 1/ Inc. 1/ Eliminations Cinergy Corp. ------------- ----------------- ------------- -------------- LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable $ 107,580 $ 20,862 $ 854 $668,860 Accounts payable to affiliated companies 45,334 2,749 (107,638) - Accrued taxes (3,954) 2,832 - 228,347 Accrued interest - 1,473 - 51,679 Notes payable and other short-term obligations - 36,255 - 903,700 Notes payable to affiliated companies - - (120,019) - Long-term debt due within one year - - - 136,000 Energy risk management liabilities - - - 1,117,146 Other - 64,727 - 93,376 ------------- ----------------- -------------- ------------ 148,960 128,898 (226,803) 3,199,108 NON-CURRENT LIABILITIES Long-term debt - 159,117 - 2,604,467 Deferred income taxes (1,812) (14,192) (495) 1,091,075 Unamortized investment tax credits - - - 156,757 Accrued pension and other postretirement benefit costs 500 - 47,475 315,147 Other 8,403 13,837 (47,475) 298,370 ------------- ----------------- -------------- ------------ 7,091 158,762 (495) 4,465,816 Total Liabilities 156,051 287,660 (227,298) 7,664,924 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption - - - 92,640 COMMON STOCK EQUITY Common stock - - - 1,587 Common stock of subsidiaries - - (762,675) - Paid-in capital 623,840 499,221 (2,087,726) 1,595,237 Retained earnings (deficit) (545,675) 7,171 (379,398) 945,214 Accumulated other comprehensive income (29) 2,072 370 (807) ------------- ----------------- -------------- ------------ Total common stock equity 78,136 508,464 (3,229,429) 2,541,231 $ 234,187 $ 796,124 $ (3,456,727) $10,298,795
CINERGY CORP. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (dollars in thousands) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. ----------------------------------------------------------------------------- BALANCE AT DECEMBER 31, 1997 2,539,200 $ - $ 1,610,588 $ 1,037,660 Comprehensive income Net income (loss) 260,968 - 215,812 52,038 Other comprehensive income (loss) Foreign currency translation adjustment 2,160 - - - Minimum pension liability adjustment (106) (794) (374) 1,091 Comprehensive income (loss) total 263,022 (794) 215,438 53,129 Issuance of common stock - net 30,235 - - - Treasury shares purchased (15,429) - - - Treasury shares reissued 7,328 - - - Dividends on preferred stock - - (859) (6,187) Dividends on common stock (284,703) - (178,000) (106,800) Non-cash dividend on common stock - - - (11,999) Contributions from parent company - - - - Contribution from parent company for reallocation of taxes - - 19,253 9,823 Other 1,578 1,532 23 22 BALANCE AT DECEMBER 31, 1998 $ 2,541,231 $ 738 $ 1,666,443 $ 975,648
CINERGY CORP. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (CONTINUED) (dollars in thousands) Consolidated Consolidated Cinergy Cinergy Global Consolidated Investments, Inc. 1/ Resources, Inc. 1/ Eliminations Cinergy Corp. ------------------------------------------------------------------------ BALANCE AT DECEMBER 31, 1997 $412,586 $- $(3,060,834) $2,539,200 Comprehensive income Net income (loss) (15,364) 49,778 (302,264) 260,968 Other comprehensive income (loss) Foreign currency translation adjustment 262 2,072 (2,334) 2,160 Minimum pension liability adjustment (29) - 106 (106) Comprehensive income (loss) total (15,131) 51,850 (304,492) 263,022 Issuance of common stock - net - - - 30,235 Treasury shares purchased - - - (15,429) Treasury shares reissued - - - 7,328 Dividends on preferred stock - - 7,046 - Dividends on common stock (461,405) (42,607) 788,812 (284,703) Non-cash divident on common stock - - 11,999 - Contributions from parent company 142,416 497,130 (639,546) - Contribution from parent company for reallocation of taxes (330) 2,091 (30,837) - Other - - (1,577) 1,578 BALANCE AT DECEMBER 31, 1998 $78,136 $508,464 $(3,229,429) $2,541,231 1/ See accompanying consolidating statements of changes in common stock equity. 2/ Par values, authorized shares, outstanding shares, and issued shares are as follows: Par Value Authorized shares Outstanding shares Issued shares (in thousands) Cinergy $0.01 600,000 158,665 920 4/ CG&E $8.50 120,000 89,663 - PSI $0.01 stated value 60,000 53,914 - Services $0.05 - 3/ - 3/ - Investments $0.01 - 3/ - 3/ - Global Resources none - 3/ - 3/ - 3/ 3/ Services and Investments each have authority to issue 100 shares of common stock. At December 31, 1998, Services and Investments had 50 shares and 100 shares, respectively, outstanding. Global Resources has authority to issue 500 shares of no par value common stock. During 1998, Global Resources issued 100 shares to Cinergy Corp. and at December 31, 1998 had 100 shares outstanding. 4/ Shares issued during 1998.
CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1998 (in thousands) Consolidated Consolidated Cinergy Cinergy The Cincinnati Gas & PSI Energy, Corp. Services, Inc. Electric Company 1/ Inc. ------------ -------------- ------------------ ------------- Operating Activities Net income $ 260,968 $ - $ 215,812 $ 52,038 Items providing or (using) cash currently: Depreciation and amortization - 3,131 191,109 130,604 Wabash Valley Power Association settlement - - - 80,000 Deferred income taxes and investment tax credits - net 24 (7,878) (27,045) (57,130) Unrealized loss from energy risk management activities - - 73,000 62,000 Equity in earnings of consolidated subsidiaries (298,660) - - - Equity in earnings of unconsolidated subsidiaries 2,913 - - - Allowance for equity funds used during construction - - (1,647) (21) Regulatory assets - net - - 4,606 42,250 Changes in current assets and current liabilities Restricted deposits - - - (1,268) Accounts and notes receivable 74,628 (24,921) (55,788) (16,850) Materials, supplies, and fuel - 561 (7,327) (25,256) Accounts payable 8,307 12,980 35,550 (7,086) Accrued taxes and interest 32,745 1,345 (2,533) (3,437) Other current assets and liabilities (502) (50) (5,359) (20,856) Other items - net 84,729 52,779 40,782 21,900 ------------ -------------- ------------------ ------------- Net cash provided by (used in) operating activities 165,152 37,947 461,160 256,888 Financing Activities Change in short-term debt (95,428) (20,897) (94,950) 69,073 Issuance of long-term debt 205,976 - 243,186 200,228 Redemption of long-term debt - - (220,409) (164,111) Retirement of preferred stock of subsidiaries - - (52) (85,247) Issuance of common stock 3,724 - - - Dividends on common stock (283,884) - (178,000) (106,800) Dividends on preferred stock - - (859) (6,187) ------------ -------------- ------------------ ------------- Net cash provided by (used in) financing activities (169,612) (20,897) (251,084) (93,044) Investing Activities Construction expenditures (less allowance for equity funds used during construction) - (17,012) (185,436) (163,225) Acquisition of businesses - net of cash acquired - - - - Investments in unconsolidated subsidiaries 3,940 - - - ------------ -------------- ------------------ ------------- Net cash provided by (used in) investing activities 3,940 (17,012) (185,436) (163,225) Net increase (decrease) in cash and temporary cash investments (520) 38 24,640 619 Cash and temporary cash investments at beginning of period 11,491 - 2,349 18,169 ------------ -------------- ------------------ ------------- Cash and temporary cash investments at end of period $ 10,971 $ 38 $ 26,989 $ 18,788 1/ See accompanying consolidating statements of cash flows.
CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1998 (in thousands) Consolidated Consolidated Cinergy Cinergy Global Consolidated Investments, Inc. 1/ Resources, Inc. 1/ Eliminations Cinergy Corp. --------------------- ------------------ ------------- ------------- Operating Activities Net income $ (15,364) $ 49,778 $ (302,264) $ 260,968 Items providing or (using) cash currently: Depreciation and amortization 2,308 1,494 (3,131) 325,515 Wabash Valley Power Association settlement - - - 80,000 Deferred income taxes and investment tax credits - net (477) (15,329) - (107,835) Unrealized loss from energy risk management activities - - - 135,000 Equity in earnings of consolidated subsidiaries - - 298,660 - Equity in earnings of unconsolidated subsidiaries 4,122 (49,496) (2,913) (45,374) Allowance for equity funds used during construction - - - (1,668) Regulatory assets - net - - - 46,856 Changes in current assets and current liabilities Restricted deposits - - - (1,268) Accounts and notes receivable (26,394) (29,871) 33,385 (45,811) Materials, supplies, and fuel (1,071) (391) - (33,484) Accounts payable (21,810) (19,648) 36,242 44,535 Accrued taxes and interest (1,337) 19,594 (6) 46,371 Other current assets and liabilities (904) 18,176 - (9,495) Other items - net 95,006 54,607 (320,105) 29,698 ------------------ ----------------- ------------- -------------- Net cash provided by (used in) operating activities 34,079 28,914 (260,132) 724,008 Financing Activities Change in short-term debt - (32,830) (70,381) (245,413) Issuance of long-term debt - 136,164 - 785,554 Redemption of long-term debt - - - (384,520) Retirement of preferred stock of subsidiaries - - - (85,299) Issuance of common stock - - - 3,724 Dividends on common stock - (42,607) 327,407 (283,884) Dividends on preferred stock - - 7,046 - ------------------ ----------------- ------------- -------------- Net cash provided by (used in) financing activities - 60,727 264,072 (209,838) Investing Activities Construction expenditures (less allowance for equity funds used during construction) (2,936) - - (368,609) Acquisition of businesses - net of cash acquired (9,431) (53,981) - (63,412) Investments in unconsolidated subsidiaries (3,020) (32,285) (3,940) (35,305) ------------------ ----------------- ------------- -------------- Net cash provided by (used in) investing activities (15,387) (86,266) (3,940) (467,326) Net increase (decrease) in cash and temporary cash investments 18,692 3,375 - 46,844 Cash and temporary cash investments at beginning of period 9,260 12,041 - 53,310 ------------------ ----------------- ------------- -------------- Cash and temporary cash investments at end of period $ 27,952 $ 15,416 $ - $ 100,154 1/ See accompanying consolidating statements of cash flows.
EX-99 49 FINANCIAL STATEMENTS
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1998 (dollars in thousands, except per share amounts) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami & Electric Company Power Company Gas Company Electric Company Power Corp. ------------------------------------------------------------------------------ OPERATING REVENUES Electric Non-affiliated companies $ 2,189,229 $ 191,356 $ - $ 523 $ - Affiliated companies 218,231 3 - - 30 Gas Non-affiliated companies 329,622 65,136 6,972 - - Affiliated companies 2,181 318 - - - ---------------- ------------- ------------ -------------- ----------- 2,739,263 256,813 6,972 523 30 OPERATING EXPENSES Fuel used in electric production 338,639 - - - - Purchased and exchanged power - Non-affiliated companies 1,031,023 - - - - Affiliated companies 38,895 142,567 - 334 - Gas purchased 164,201 32,804 3,745 - - Other operation and maintenance 355,120 37,131 1,249 39 5 Depreciation and amortization 177,300 13,148 451 19 1 Taxes other than income taxes 213,344 3,993 292 12 6 ---------------- ------------- ------------ -------------- ----------- 2,318,522 229,643 5,737 404 12 OPERATING INCOME (LOSS) 420,741 27,170 1,235 119 18 EQUITY IN EARNINGS OF SUBSIDIARIES 13,500 - - - - OTHER INCOME AND (EXPENSE) - NET 1,996 (1,242) (11) - - INTEREST 99,637 4,604 137 - - ---------------- ------------- ------------ -------------- ----------- INCOME BEFORE TAXES 336,600 21,324 1,087 119 18 INCOME TAXES 120,788 7,774 391 47 7 ---------------- ------------- ------------ -------------- ----------- NET INCOME 215,812 13,550 696 72 11 PREFERRED DIVIDEND REQUIREMENT 858 - - - - ---------------- ------------- ------------ -------------- ----------- NET INCOME APPLICABLE TO COMMON STOCK $ 214,954 $ 13,550 $696 $72 $ 11
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1998 (dollars in thousands, except per share amounts) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company ------------------------------------------------------------------ OPERATING REVENUES Electric Non-affiliated companies $ - $ - $ (2,677) $ 2,378,431 Affiliated companies - - (144,003) 74,261 Gas Non-affiliated companies - 163 - 401,893 Affiliated companies - 904 (1,865) 1,538 ------------- ------------- ------------ ------------- - 1,067 (148,545) 2,856,123 OPERATING EXPENSES Fuel used in electric production - - - 338,639 Purchased and exchanged power Non-affiliated companies - - (1,422) 1,029,601 Affiliated companies - - (142,900) 38,896 Gas purchased - - (1,067) 199,683 Other operation and maintenance 32 699 (1,434) 392,841 Depreciation and amortization - 190 - 191,109 Taxes other than income taxes 26 17 1 217,691 ------------- ------------- ------------ ------------- 58 906 (146,822) 2,408,460 OPERATING INCOME (LOSS) (58) 161 (1,723) 447,663 EQUITY IN EARNINGS OF SUBSIDIARIES - - (13,500) - OTHER INCOME AND (EXPENSE) - NET 702 - (2,736) (1,291) INTEREST 597 - (2,737) 102,238 ------------- ------------- ------------ ------------- INCOME BEFORE TAXES 47 161 (15,222) 344,134 INCOME TAXES 35 68 (788) 128,322 ------------- ------------- ------------ ------------- NET INCOME 12 93 (14,434) 215,812 PREFERRED DIVIDEND REQUIREMENT - - - 858 ------------- ------------- ------------ ------------- NET INCOME APPLICABLE TO COMMON STOCK $ 12 $ 93 $ (14,434) $ 214,954
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET DECEMBER 31, 1998 (dollars in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami & Electric Company Power Company Gas Company Electric Company Power Corp. ------------------------------------------------------------------------------------- ASSETS CURRENT ASSETS Cash and temporary cash investments $ 23,489 $ 3,244 $ 76 $ 100 $ 14 Restricted deposits 1,173 - - - - Notes receivable from affiliated companies 99,932 - - - - Accounts receivable - net 192,208 14,125 1,257 56 - Accounts receivable from affiliated companies 34,226 666 476 - 1 Materials, supplies, and fuel - at average cost 107,008 8,269 17 - - Prepayments and other 39,842 308 8 - - Energy risk management assets 484,500 - - - - ----------------- -------------- -------------- ----------------- ----------- 982,378 26,612 1,834 156 15 UTILITY PLANT - ORIGINAL COST In service Electric 4,573,582 232,222 - 590 564 Gas 592,419 164,040 15,418 - - Common 167,456 18,908 - - - ----------------- -------------- -------------- ----------------- ----------- 5,333,457 415,170 15,418 590 564 Accumulated depreciation 1,985,522 143,386 4,699 223 558 ----------------- -------------- -------------- ----------------- ----------- 3,347,935 271,784 10,719 367 6 Construction work in progress 108,104 11,444 444 - - ----------------- -------------- -------------- ----------------- ----------- Total utility plant 3,456,039 283,228 11,163 367 6 OTHER ASSETS Regulatory assets 616,057 10,978 - - - Investments in consolidated subsidiaries 174,294 - - - - Other 52,894 3,767 70 2 - ----------------- -------------- -------------- ----------------- ----------- 843,245 14,745 70 2 - $ 5,281,662 $ 324,585 $ 13,067 $ 525 $ 21
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1998 (dollars in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company --------------------------------------------------------------------- ASSETS CURRENT ASSETS Cash and temporary cash investments $ 66 $ - $ - $ 26,989 Restricted deposits - - - 1,173 Notes receivable from affiliated companies - - (15,574) 84,358 Accounts receivable - net 8 83 (2,677) 205,060 Accounts receivable from affiliated companies 24 18 (12,776) 22,635 Materials, supplies, and fuel - at average cost - - - 115,294 Prepayments and other - - - 40,158 Energy risk management assets - - - 484,500 -------------- ------------- ------------ --------------- 98 101 (31,027) 980,167 UTILITY PLANT - ORIGINAL COST In service Electric - - - 4,806,958 Gas - 14,311 - 786,188 Common - - - 186,364 -------------- ------------- ------------ --------------- - 14,311 - 5,779,510 Accumulated depreciation - 12,910 - 2,147,298 -------------- ------------- ------------ --------------- - 1,401 - 3,632,212 Construction work in progress - - 1 119,993 -------------- ------------- ------------ --------------- Total utility plant - 1,401 1 3,752,205 OTHER ASSETS Regulatory assets - - - 627,035 Investments in consolidated subsidiaries - - (174,294) - Other 42,957 371 - 100,061 -------------- ------------- ------------ --------------- 42,957 371 (174,294) 727,096 $ 43,055 $ 1,873 $ (205,320) $ 5,459,468
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET DECEMBER 31, 1998 (dollars in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami & Electric Company Power Company Gas Company Electric Company Power Corp. -------------------------------------------------------------------------------- LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable $ 275,963 $ 5,903 $ 540 $ - $ - Accounts payable to affiliated companies 9,536 14,986 132 38 - Accrued taxes 147,905 3,216 398 (2) 2 Accrued interest 18,569 1,959 41 2 - Notes payable and other short-term obligations 189,283 - - - - Notes payable to affiliated companies - 31,817 776 - - Long term debt due within one year 110,000 20,000 - - - Energy risk management liabilities 558,573 - - - - Other 22,007 4,247 160 8 - ----------------- ------------- ------------- --------------- ----------- 1,331,836 82,128 2,047 46 2 NON-CURRENT LIABILITIES Long term debt 1,164,026 54,553 1,200 - - Deferred income taxes 739,969 26,134 1,160 70 (33) Unamortized investment tax credits 106,355 4,238 198 10 - Accrued pension and other postretirement benefit costs 134,145 11,678 538 - - Other 118,171 17,036 684 8 35 ----------------- ------------- ------------- --------------- ----------- 2,262,666 113,639 3,780 88 2 Total liabilities 3,594,502 195,767 5,827 134 4 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption 20,717 - - - - COMMON STOCK EQUITY Common stock 762,136 - - - - Common stock of subsidiaries - 8,780 538 20 1 Paid-in capital 553,926 19,525 60 23 7 Retained earnings (deficit) 351,505 100,513 6,642 348 9 Accumulated other comprehensive income (loss) (1,124) - - - - ----------------- ------------- ------------- --------------- ----------- Total common stock equity 1,666,443 128,818 7,240 391 17 $ 5,281,662 $ 324,585 $ 13,067 $ 525 $ 21
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1998 (dollars in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company --------------------------------------------------------------------- LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES Accounts payable $ 276 $ 30 $ 31 $ 282,743 Accounts payable to affiliated companies - 1,250 (12,776) 13,166 Accrued taxes 587 44 (695) 151,455 Accrued interest - - - 20,571 Notes payable and other short-term obligations - - - 189,283 Notes payable to affiliated companies - - (15,573) 17,020 Long term debt due within one year - - - 130,000 Energy risk management liabilities - - - 558,573 Other - - - 26,422 ------------ -------------- ------------ -------------- 863 1,324 (29,013) 1,389,233 NON-CURRENT LIABILITIES Long term Debt 37,366 - (37,367) 1,219,778 Deferred income taxes 3,870 (25) - 771,145 Unamortized investment tax credits - - - 110,801 Accrued pension and other postretirement benefit costs - - - 146,361 Other 10 - (954) 134,990 ------------ -------------- ------------ -------------- 41,246 (25) (38,321) 2,383,075 Total liabilities 42,109 1,299 (67,334) 3,772,308 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption - - - 20,717 COMMON STOCK EQUITY Common stock - - - 762,136 Common stock of subsidiaries 25 - (9,364) - Paid-in capital - 530 (20,145) 553,926 Retained earnings (deficit) 921 44 (108,477) 351,505 Accumulated other comprehensive income (loss) - - - (1,124) ------------ -------------- ------------ -------------- Total common stock equity 946 574 (137,986) 1,666,443 $ 43,055 $ 1,873 $ (205,320) $ 5,459,468
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (dollars in thousands) The Union The West The Cincinnati Light, Heat Harrison Gas Gas & Electric and Power Lawrenceburg and Electric Miami Company Company Gas Company Company Power Corp. ------------------------------------------------------------------------ BALANCE AT DECEMBER 31, 1997 $ 1,610,588 $ 122,913 $ 6,807 $ 347 $ 4 Comprehensive income Net income 215,812 13,550 696 72 11 Other comprehensive income Minimum pension liability adjustment (374) - - - - ---------------- -------------- ------------- ------------ ------------ Comprehensive income total 215,438 13,550 696 72 11 Dividends on preferred stock (859) - - - - Dividends on common stock (178,000) (8,487) (323) (50) (5) Contribution from parent for reallocation of taxes 19,253 843 60 23 7 Other 23 (1) - - - ---------------- -------------- ------------- ------------ ------------ BALANCE AT DECEMBER 31, 1998 $ 1,666,443 $ 128,818 $ 7,240 $ 392 $ 17
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (CONTINUED) (dollars in thousands) Consolidated Tri-State KO The Cincinnati Improvement Transmission Gas & Electric Co. Co. Eliminations Company ------------------------------------------------------------ BALANCE AT DECEMBER 31, 1997 $ 934 $ 470 $ (131,475) $ 1,610,588 Comprehensive income Net income 12 93 (14,434) 215,812 Other comprehensive income Minimum pension liability adjustment - - - (374) ------------ ------------ -------------- ----------------- Comprehensive income total 12 93 (14,434) 215,438 Dividends on preferred stock - - (859) Dividends on common stock - (4) 8,869 (178,000) Contribution from parent for reallocation of taxes - 15 (948) 19,253 Other - - 1 23 ----------- ------------ -------------- ----------------- BALANCE AT DECEMBER 31, 1998 $ 946 $ 574 $ (137,987) $ 1,666,443
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1998 (in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and & Electric Company Power Company Gas Company Electric Company ----------------------------------------------------------------- Operating Activities Net income $ 215,812 $ 13,550 $ 696 $ 72 Items providing or (using) cash currently: Depreciation and amortization 177,299 13,148 451 19 Deferred income taxes and investment tax credits - net (27,136) (261) (35) 1 Unrealized loss from energy risk management activities 73,000 - - - Equity in earnings of consolidated subsidiaries (13,500) - - - Allowance for equity funds used during management activities (1,500) (142) - - Regulatory assets - net 4,603 3 - - Deferred gas costs - - 411 - Changes in current assets and current liabilities Accounts and notes receivable (50,503) (4,820) (139) - Materials, supplies, and fuel (5,150) (2,175) (2) - Accounts payable 39,106 (9,920) (395) 11 Accrued taxes and interest 748 (2,443) 81 (7) Other current assets and liabilities (5,309) (40) (10) 1 Other items - net 37,356 3,268 141 14 --------------- ------------ ----------- ------------ Net cash provided by (used in) operating activities 444,826 10,168 1,199 111 Financing Activities Change in short-term debt (100,122) 8,330 (133) (10) Issuance of long-term debt 203,120 40,066 - - Redemption of long-term debt (210,291) (10,118) - - Retirement of preferred stock (52) - - - Dividends on common stock (178,000) (8,487) (323) (50) Dividends on preferred stock (859) - - - --------------- ------------ ----------- ------------ Net cash provided by (used in) financing activities (286,204) 29,791 (456) (60) Investing Activities Construction expenditures (less allowance for equity funds used during construction) (136,688) (37,261) (789) (4) --------------- ------------ ----------- ------------ Net cash provided by (used in) investing activities (136,688) (37,261) (789) (4) Net increase (decrease) in cash and temporary cash investments 21,934 2,698 (46) 47 Cash and temporary cash investments at beginning of period 1,555 546 122 53 --------------- ------------ ----------- ------------ Cash and temporary cash investments at end of period $ 23,489 $ 3,244 $ 76 $ 100
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1998 (in thousands) Consolidated Miami Tri-State KO The Cincinnati Gas Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company -------------------------------------------------------------------------------- Operating Activities Net income $ 11 $ 12 $ 93 $ (14,434) $ 215,812 Items providing or (using) cash currently: Depreciation and amortization 1 - 191 - 191,109 Deferred income taxes and investment tax credits - net - 469 11 (94) (27,045) Unrealized loss from energy risk management activities - - - - 73,000 Equity in earnings of consolidated subsidiaries - - - 13,500 - Allowance for equity funds used during management activities - - - (5) (1,647) Regulatory assets - net - - - - 4,606 Deferred gas costs - - - (411) - Changes in current assets and current liabilities Accounts and notes receivable 1 345 (40) (632) (55,788) Materials, supplies, and fuel - - - - (7,327) Accounts payable - 62 359 6,327 35,550 Accrued taxes and interest (4) (157) (56) (695) (2,533) Other current assets and liabilities - - - (1) (5,359) Other items - net 6 4,712 33 (4,748) 40,782 ---------- ------------ ------------ ---------- ------------- Net cash provided by (used in) operating activities 15 5,443 591 (1,193) 461,160 Financing Activities Change in short-term debt - - - (3,015) (94,950) Issuance of long-term debt - - - - 243,186 Redemption of long-term debt - - - - (220,409) Retirement of preferred stock - - - - (52) Dividends on common stock (5) - (4) 8,869 (178,000) Dividends on preferred stock - - - - (859) ---------- ------------ ------------ ---------- --------------- Net cash provided by (used in) financing activities (5) - (4) 5,854 (251,084) Investing Activities Construction expenditures (less allowance for equity funds used during construction) - (5,447) (587) (4,660) (185,436) ---------- ------------ ------------ ---------- --------------- Net cash provided by (used in) investing activities - (5,447) (587) (4,660) (185,436) Net increase (decrease) in cash and temporary cash investments 10 (4) - 1 24,640 Cash and temporary cash investments at beginning of period 4 70 - (1) 2,349 ---------- ------------ ------------ ---------- --------------- Cash and temporary cash investments at end of period $ 14 $ 66 - - $ 26,989
EX-99 50 ITEM 6 PART III ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES (b) Security Ownership of Certain Beneficial Owners and Management Cinergy (including Investments, Global Resources, and Services) The beneficial ownership of Cinergy's common stock held by each nominee, continuing director, and named executive officer, including those of Investments and subsidiaries (as identified on pages XX-XX of this Annual Report on Form U5S (U5S)) and of units equal to one share of Cinergy's common stock paid as compensation to non-employee directors, as of December 31, 1998, is set forth in the following table.
Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3) ---------------------------- --------------------------- --------- Neil A. Armstrong 10,750 shares James K. Baker 23,605 shares 5,901 Michael G. Browning 28,835 shares 9,495 Phillip R. Cox 10,238 shares Kenneth M. Duberstein 22,991 shares Cheryl M. Foley 81,306 shares William J. Grealis 109,649 shares John A. Hillenbrand II 33,472 shares 9,542 George C. Juilfs 13,750 shares John M. Mutz 113,145 shares Melvin Perelman 23,423 shares 8,918 Thomas E. Petry 12,000 shares Jackson H. Randolph 209,609 shares James E. Rogers 398,526 shares Mary L. Schapiro 0 shares John J. Schiff, Jr. 51,059 shares (4) Philip R. Sharp 6,000 shares Dudley S. Taft 13,000 shares Larry E. Thomas 131,737 shares Oliver W. Waddell 15,253 shares All directors and executive officers as a group 1,994,955 shares (2) (representing 1.26% of the class) - ------------------- (1) No individual listed beneficially owned more than 0.252% of the outstanding shares of Cinergy's common stock.
1 ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES [FN] (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Armstrong-10,000; Mr. Baker-10,000; Mr. Browning-22,787; Mr. Cox-10,000; Mr. Duberstein-15,287; Ms. Foley-20,000; Mr. Grealis-73,237; Mr. Hillenbrand-10,000; Mr. Juilfs-10,000; Mr. Mutz-80,000; Dr. Perelman-10,000; Mr. Petry-10,000; Mr. Randolph-91,258; Mr. Rogers-195,629; Mr. Schiff-10,000; Dr. Sharp-5,000; Mr. Taft-10,000; Mr. Thomas-62,516; and all directors and executive officers as a group-1,005,613. (3) Each unit represents one share of Cinergy's common stock credited to the account of the respective directors as of December 31, 1998, under the Cinergy Directors' Deferred Compensation Plan. (4) Includes 15,000 shares owned of record by a trust of which Mr. Schiff is one of three trustees who share voting and investment power equally. Does not include 1,791,000 shares, as to which Mr. Schiff disclaims any beneficial interest, held by Cincinnati Financial Corporation and certain of its subsidiaries. CG&E (including subsidiaries) CG&E's (and subsidiaries') directors and executive officers (as identified on pages XX-XX of this U5S) did not beneficially own any shares of any series of the class of CG&E's cumulative preferred stock as of February 28, 1999. The beneficial ownership of the outstanding shares of Cinergy's common stock held by each director and named executive officer as of February 28, 1999, is set forth in the following table. Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) ---------------------------- --------------------------- William J. Grealis 86,313 shares J. Wayne Leonard 140,961 shares Jackson H. Randolph 152,426 shares James E. Rogers 339,254 shares Larry E. Thomas 130,366 shares All directors and executive officers as a group 1,210,848 shares (2) (representing 0.76% of the class) - ------------------- (1) No individual listed beneficially owned more than 0.257% of the outstanding shares of Cinergy's common stock. (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Grealis-73,237; Mr. Randolph-91,258; Mr. Rogers-195,629; Mr. Thomas-62,516; and all directors and executive officers as a group-562,690. 2 ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES PSI (including subsidiaries) PSI's (and its sole subsidiary) director-nominees and named executive officers (as identified on pages XX-XX of this U5S) did not beneficially own any shares of any series of the class of PSI's cumulative preferred stock as of December 31, 1998. The beneficial ownership of the outstanding shares of Cinergy's common stock held by each director-nominee and named executive officer, and of units equal to one share of Cinergy common stock paid as compensation to non-employee directors of Cinergy, as of December 31, 1998, is set forth in the following table.
Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3) ---------------------------- --------------------------- --------- James K. Baker 23,605 shares 5,901 Michael G. Browning 28,835 shares 9,495 William J. Grealis 109,649 shares John A. Hillenbrand II 33,472 shares 9,542 John M. Mutz 113,145 shares Jackson H. Randolph 209,609 shares James E. Rogers 398,526 shares Larry E. Thomas 131,737 shares All directors and executive officers as a group 1,306,603 shares (2) (representing .824% of the class) - ------------------- (1) No individual listed beneficially owned more than 0.52% of the outstanding shares of Cinergy's common stock. (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Baker-10,000; Mr. Browning-22,287; Mr. Hillenbrand-10,000; Mr. Mutz-80,000; Mr. Randolph-91,258; Mr. Rogers-195,629; Mr. Thomas-62,516; and all directors and executive officers as a group-635,919. (3) Each unit represents one share of Cinergy's common stock credited to the account of the respective directors as of December 31, 1998, under Cinergy's Directors' Deferred Compensation Plan.
3 EX-21 51 SUBSIDIARY LISTING Subsidiary Listing The following is a listing of the subsidiaries of each registrant and their state of incorporation or organization indented to show degree of remoteness from registrant. State or Country of Organization Name of Company or Incorporation Cinergy Corp. Delaware The Cincinnati Gas & Electric Company Ohio The Union Light, Heat and Power Company Kentucky Lawrenceburg Gas Company Indiana The West Harrison Gas and Electric Company Indiana Miami Power Corporation Indiana KO Transmission Company Kentucky Tri-State Improvement Company Ohio Ohio Valley Electric Corporation (9%) Ohio PSI Energy, Inc. Indiana South Construction Company, Inc. Indiana Cinergy Services, Inc. Delaware Cinergy Investments, Inc. Delaware Cinergy-Cadence, Inc. Indiana Cadence Network LLC (33 1/3%) Delaware Cinergy Capital & Trading, Inc. Indiana CinCap IV, LLC Delaware CinCap V, LLC Delaware CinCap VI, LLC Delaware CinCap VII, LLC Delaware CinCap VIII, LLC Delaware Westwood Operating Company, LLC Delaware CinPower I, LLC Delaware Producers Energy Marketing, LLC Delaware Cinergy Communications, Inc. Delaware Cinergy Engineering, Inc. Ohio Cinergy-Centrus, Inc. Delaware Centrus, LLP (33 1/3%) Indiana Cinergy-Centrus Communications, Inc. Delaware Cinergy Resources, Inc. Delaware Cinergy Solutions, Inc. Delaware (In Illinois d/b/a Cinergy Solutions of Illinois, Inc., In Ohio d/b/a Cinergy Solutions of Ohio, Inc.) Cinergy Business Solutions, Inc. Delaware Cinergy Customer Care, Inc. Delaware Cinergy Solutions of Tuscola, Inc. Delaware Energy Equipment Leasing LLC Delaware Trigen-Cinergy Solutions LLC (50%) Delaware Trigen-Cinergy Solutions of Baltimore LLC (49%) Delaware Trigen-Cinergy Solutions of Boca Raton, LLC (51%) Delaware Trigen-Cinergy Solutions of Cincinnati LLC (51%) Ohio Trigen-Cinergy Solutions of Illinois L.L.C. (49%) Delaware Trigen-Cinergy Solutions of Orlando LLC (51%) Delaware Trigen-Cinergy Solutions of St. Paul LLC (49%) Delaware Trigen-Cinergy Solutions of Tuscola, LLC (49%) Delaware Cinergy Supply Network, Inc. Delaware Reliant Services, LLC (50%) Indiana Cinergy Technology, Inc. Indiana Enertech Associates, Inc. Ohio Cinergy Global Resources, Inc. Delaware Cinergy Global Power, Inc. Delaware Cinergy Global Ely, Inc. Delaware EPR Ely Power Limited (30%) England EPR Ely Limited England Cinergy Global Power Services Limited England Cinergy Global San Gorgonio, Inc. Delaware San Gorgonio Westwinds II, LLC (50%) California Cinergy Global Holdings, Inc. Delaware Cinergy Holdings B.V. The Netherlands Cinergy Zambia B.V. The Netherlands Copperbelt Energy Corporation PLC (39%) Republic of Zambia Cinergy Turbines B.V. The Netherlands EOS PAX I S.L. (50%) Spain EOS PAX IIa S.L. (50%) Spain Cinergy Hydro B.V. The Netherlands Sociedad Construcciones y Representaciones Industriales S.A. (95%) Spain Vendresse Limited Isle of Man Cinergy 1 B.V. The Netherlands Startekor Investeeringute OU (67%) Estonia Aktsiaselts Narva Elektrivork (49%) Estonia Cinergy Global Resources 1 B.V. The Netherlands Moravske Teplarny a.s. Czech Republic Plzenska Energetika s.r.o. Czech Republic Cinergy Global Resources a.s Czech Republic Cinergy 2 B.V. The Netherlands Desarrollo Eolico del Ebro, S.A. (50%) Spain Cinergy Global Hydrocarbons Pakistan Cayman Islands Cinergy MPI II, Inc. Cayman Islands Cinergy MPI III, Inc. Cayman Islands Cinergy MPI IV, Inc. Cayman Islands Cinergy MPI V, Inc. Cayman Islands Cinergy MPI VI, Inc. Cayman Islands Cinergy MPI VII, Inc. Cayman Islands Cinergy MPI VIII, Inc. Cayman Islands Cinergy MPI IX, Inc. Cayman Islands Cinergy MPI X, Inc. Cayman Islands Cinergy MPI XI, Inc. Cayman Islands Cinergy MPI XII, Inc. Cayman Islands Cinergy MPI XIII, Inc. Cayman Islands Cinergy MPI XIV, Inc. Cayman Islands Cinergy MPI XV, Inc. Cayman Islands Midlands Hydrocarbons (Bangladesh) Limited England Cinergy UK, Inc. Delaware Avon Energy Partners Holdings (50%) England Avon Energy Partners PLC England Midlands Electricity plc England PSI Argentina, Inc. Indiana Costanera Power Corp. Indiana PSI Energy Argentina, Inc. Indiana EX-27.0 52 CINERGY 1998 FORM U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 0 CINERGY CORP. CONSOLIDATED 1,000 YEAR DEC-31-1998 JUL-01-1998 DEC-30-1998 PER-BOOK 6,344,449 574,401 1,930,706 970,767 478,472 10,298,795 1,587 1,595,237 944,407 2,541,231 0 92,640 2,604,467 903,700 0 0 136,000 0 0 0 4,020,757 10,298,795 5,876,294 117,177 5,309,865 5,427,042 449,252 61,830 511,082 243,587 267,495 6,517 260,978 284,703 183,850 724,008 1.65 1.65
EX-27.1 53 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1 CINERGY CORP. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 0 3,225,112 19,868 0 43,221 3,288,201 1,587 1,595,237 944,407 2,541,231 0 0 199,913 505,000 0 0 0 0 0 0 42,057 3,288,201 0 (18,687) 7,425 (11,262) 11,262 287,625 298,887 37,919 260,968 0 260,968 284,703 579 165,152 0.00 0.00
EX-27.2 54 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 2 CINERGY SERVICES, INC. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 0 0 44,321 0 43,695 88,016 0 0 738 738 0 0 0 53 0 0 0 0 0 0 87,225 88,016 412,409 (335) 412,249 411,914 495 424 919 919 0 0 0 0 0 37,947 0.00 0.00
EX-27.3 55 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 3 THE CINCINNATI GAS & ELECTRIC CO. (CONSOLIDATED) 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 3,752,205 0 980,167 627,035 100,061 5,459,468 762,136 553,926 350,381 1,666,443 0 20,717 1,219,778 206,303 0 0 130,000 0 0 0 2,216,227 5,459,468 2,856,123 128,322 2,408,460 2,536,782 319,341 (1,291) 318,050 102,238 215,812 858 214,954 178,000 101,385 461,160 0.00 0.00
EX-27.4 56 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 4 PSI ENERGY, INC. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 2,592,245 0 860,538 343,731 93,012 3,889,526 539 410,739 564,370 975,648 0 71,923 1,025,659 276,108 0 0 6,000 0 0 0 1,534,188 3,889,526 2,403,038 23,147 2,241,794 2,264,941 138,097 3,300 141,397 89,359 52,038 5,659 46,379 106,800 80,259 256,888 0.00 0.00
EX-27.5 57 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 5 CINERGY INVESTMENTS, INC. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 0 8,524 166,990 0 58,673 234,187 0 623,840 (545,704) 78,136 0 0 0 0 0 0 0 0 0 0 156,051 234,187 726,007 (12,053) 749,515 737,462 (11,455) (1,949) (13,404) 1,960 (15,364) 0 (15,364) 461,405 0 34,079 0.00 0.00
EX-27.6 58 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 6 CINERGY GLOBAL RESOURCES, INC. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 0 565,877 86,002 0 144,245 796,124 0 499,221 9,243 508,464 0 0 159,117 36,255 0 0 0 0 0 0 92,288 796,124 8,734 (3,543) 20,235 16,692 (7,958) 78,403 70,445 20,667 49,778 0 49,778 42,607 1,627 28,914 0.00 0.00
EX-27.7 59 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 7 THE CINCINNATI GAS & ELECTRIC COMPANY 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 3,456,039 174,294 982,378 616,057 52,894 5,281,662 762,136 553,926 350,381 1,666,443 0 20,717 1,164,026 189,283 0 0 110,000 0 0 0 2,131,193 5,281,662 2,739,263 120,788 2,318,522 2,439,310 299,953 15,496 315,449 99,637 215,812 858 214,954 178,000 97,326 444,826 0.00 0.00
EX-27.8 60 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 8 THE UNION LIGHT, HEAT AND POWER COMPANY 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 283,228 0 26,612 10,978 3,767 324,585 8,780 19,525 100,513 128,818 0 0 54,553 31,817 0 0 20,000 0 0 0 89,397 324,585 256,813 7,774 229,643 237,417 19,396 (1,242) 18,154 4,604 13,550 0 13,550 8,487 3,941 10,168 0.00 0.00
EX-27.9 61 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 9 LAWRENCEBURG GAS COMPANY 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 11,163 0 1,834 0 70 13,067 538 60 6,642 7,240 0 0 1,200 776 0 0 0 0 0 0 3,851 13,067 6,972 391 5,737 6,128 844 (11) 833 137 696 0 696 323 118 1,199 0.00 0.00
EX-27.10 62 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 10 THE WEST HARRISON GAS & ELEC CO 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 367 0 156 0 2 525 20 23 348 391 0 0 0 0 0 0 0 0 0 0 134 525 523 47 404 451 72 0 72 0 72 0 72 50 0 111 0.00 0.00
EX-27.11 63 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 11 MIAMI POWER CORP. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 6 0 15 0 0 21 1 7 9 17 0 0 0 0 0 0 0 0 0 0 4 21 30 7 12 19 11 0 11 0 11 0 11 5 0 15 0.00 0.00
EX-27.12 64 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 12 TRI-STATE IMPROVEMENT CO. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 0 0 98 0 42,957 43,055 25 0 921 946 0 0 37,366 0 0 0 0 0 0 0 4,743 43,055 0 35 58 93 (93) 702 609 597 12 0 12 0 0 5,443 0.00 0.00
EX-27.13 65 CINERGY 1998 U5S
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND CONSOLIDATED STATEMENTS OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 13 KO TRANSMISSION CO. 1,000 12-MOS DEC-31-1998 JAN-01-1998 DEC-31-1998 PER-BOOK 1,401 0 101 0 371 1,873 0 530 44 574 0 0 0 0 0 0 0 0 0 0 1,299 1,873 1,067 68 906 974 93 0 93 0 93 0 93 4 0 591 0.00 0.00
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