-----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, VtinDzJEkI3NeWIKY0isL2H2wWPjhwSP3iw6NB98FShXgJSDnz4wq8DRYMeq6FRt 25v28VKp3phL0/1mAY+vjQ== /in/edgar/work/0000899652-00-000113/0000899652-00-000113.txt : 20001020 0000899652-00-000113.hdr.sgml : 20001020 ACCESSION NUMBER: 0000899652-00-000113 CONFORMED SUBMISSION TYPE: U5S/A PUBLIC DOCUMENT COUNT: 76 CONFORMED PERIOD OF REPORT: 19991231 FILED AS OF DATE: 20001019 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CINERGY CORP CENTRAL INDEX KEY: 0000899652 STANDARD INDUSTRIAL CLASSIFICATION: [4931 ] IRS NUMBER: 311385023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U5S/A SEC ACT: SEC FILE NUMBER: 001-11377 FILM NUMBER: 742477 BUSINESS ADDRESS: STREET 1: 139 E FOURTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5132872644 MAIL ADDRESS: STREET 1: 139 E FOURTH STREET STREET 2: P.O BOX 960 CITY: CINCINATI STATE: OH ZIP: 45202 U5S/A 1 0001.txt 1999 CINERGY CORP. U5S AMENDMENT 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Amendment No. 1 to FORM U5S ANNUAL REPORT For the Year Ended December 31, 1999 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) ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES Part I (c) The 1999 Form U5S is hereby being amended to include the required information for Cinergy Global Power (UK) Limited as of December 31, 1999. This information will be included in Exhibit J-1 and is being filed herewith pursuant to Rule 104(b). Part II The 1999 Form U5S is hereby being amended to include the audited financial statements for Foote Creek III, LLC and Cinergy Global Power (UK) Limited which were not available at the time of the original filing. Such financial statements are included in the exhibit listing below and are being filed herewith pursuant to Rule 104(b). 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 EPR Ely Limited for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-2 Financial Statements for Copperbelt for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-3 Financial Statements for EOS I for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-4 Financial Statements for EOS II for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-5 Financial Statements for Crisa for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-6 Financial Statements for Ascoy for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-7 Financial Statements for Narva for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-8 Financial Statements for Moravske Teplarny a.s. for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-9 Financial Statements for Plzenska Energetika s.r.o. for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-10 Financial Statements for Cinergetika for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-11 Financial Statements for Chropyne for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-12 Financial Statements for Desebro for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-13 Financial Statements for Semutang for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-14 Financial Statements for Foote Creek III, LLC for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-15 Financial Statements for Cinergy Global Power (UK) Limited for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS It has recently come to our attention that certain exhibits to Cinergy's 1999 Form U5S have not been received by the EDGAR filing system. We are hereby amending the previously filed Form U5S to resubmit such exhibits. The following exhibit listings have also been updated to include the audited financial statements for Foote Creek III, LLC and Cinergy Global Power (UK) Limited which were not available at the time of the original filing. Consolidating Financial Statements, Schedules, and Notes o Financial Statements and Notes 1 through 19 to the Financial Statements are incorporated herein by reference, in Exhibit A-1 (page 72), in the Cinergy Annual Report on Form 10-K for 1999 (Item 8. Financial Statements and Supplementary Data). o Financial Statements and Notes 1 through 19 to the Financial Statements are incorporated herein by reference, in Exhibit A-3 (page 72), in the CG&E Annual Report on Form 10-K for 1999 (Item 8. Financial Statements and Supplementary Data). o Financial Statements and Notes 1 through 19 to the Financial Statements are incorporated herein by reference, in Exhibit A-4 (page 72), in the PSI Annual Report on Form 10-K for 1999 (Item 8. Financial Statements and Supplementary Data). o Financial Statements and Notes 1 through 19 to the Financial Statements are incorporated herein by reference, in Exhibit A-5 (page 72), in the ULH&P Annual Report on Form 10-K for 1999 (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, 1999" 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-8 through F-10 and I-1 through I-15. F-1 Consent of Independent Public Accountants. F-2 Consolidating Financial Statements of Cinergy for 1999. F-3 Consolidating Financial Statements of CG&E for 1999. F-4 Consolidating Financial Statements of Investments for 1999. (Filed pursuant to Rule 104(b).) F-5 Consolidating Financial Statements of Capital & Trading for 1999. (Filed pursuant to Rule 104(b).) F-6 Consolidating Financial Statements of Solutions for 1999. (Filed pursuant to Rule 104(b).) F-7 Consolidating Financial Statements of Cinergy Business Solutions for 1999. (Filed pursuant to Rule 104(b).) F-8 Consolidating Financial Statements of Global Resources for 1999. (Filed pursuant to Rule 104(b).) F-9 Consolidating Financial Statements of Cinergy Global Power for 1999. (Filed pursuant to Rule 104(b).) F-10 Consolidating Financial Statements of Cinergy Global Resources 1 BV. (Filed pursuant to Rule 104(b).) F-11 Financial Statements of Cadence for 1999. (Filed pursuant to Rule 104(b).) F-12 Financial Statements of CinCap IV, LLC for 1999. (Filed pursuant to Rule 104(b).) F-13 Summary of Selected Financial Information of Trigen-Cinergy Joint Ventures for 1999. (Filed pursuant to Rule 104(b).) F-14 Financial Statements of Reliant Services, LLC for 1999. (Filed pursuant to Rule 104(b).) F-15 Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. F-23 Financial Statements of CinCap V, LLC for 1999. (Filed pursuant to Rule 104(b).) F-24 Financial Statements of Lattice Communications, LLC for 1999. (Filed pursuant to Rule 104(b).) F-25 Financial Statements of Centrus, LLP for 1999. (Filed pursuant to Rule 104(b).) H Organizational chart showing the relationship of EWGs and FUCOs to other system companies. I-1 Financial Statements of EPR Ely Limited for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-2 Financial Statements of Copperbelt for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-3 Financial Statements of EOS I for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-4 Financial Statements of EOS II for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-5 Financial Statements of Crisa for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-6 Financial Statements of Ascoy for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-7 Financial Statements of Narva for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-8 Financial Statements of Teplarny for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-9 Financial Statements of Energetika for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-10 Financial Statements of Cinergetika for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-11 Financial Statements of Chropyne for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-12 Financial Statements of Desebro for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-13 Financial Statements of Semutang for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-14 Financial Statements for Foote Creek III, LLC for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-15 Financial Statements for Cinergy Global Power (UK) Limited for the year ended December 31, 1999. (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).) J-1 Amended 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, 1999. (File No. 1-11377.) A-2 *2000 Proxy Statement and 1999 Financial Report for the year ended December 31, 1999. (File No. 1-11377.) A-3 *Annual Report of CG&E on Form 10-K for the year ended December 31, 1999. (File No. 1-1232.) A-4 *Annual Report of PSI on Form 10-K for the year ended December 31, 1999. (File No. 1-3543.) A-5 *Annual Report of ULH&P on Form 10-K for the year ended December 31, 1999. (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 *By-laws of Cinergy as amended April 21, 1999. (Exhibit to Cinergy's March 31, 1999, Form 10-Q in File No. 1-11377). B-4 *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-5 *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-6 *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-7 *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-8 *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-9 *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-10 *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-11 *Amendment to Restated Articles of Incorporation of ULH&P (Article Third) and Amendment to the By-Laws of ULH&P (Article 1), both effective July 24, 1997. (Exhibit to ULH&P's Form 10-K in File No. 2-7793.) B-12 By-laws of ULH&P as amended, adopted May 26, 1999. B-13 *Certificate of Incorporation of Services. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-14 *By-laws of Services. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-15 *Articles of Incorporation of Tri-State. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-16 *Regulations of Tri-State. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-17 Regulations of Tri-State as amended, adopted May 28, 1999. B-18 *Articles of Incorporation of Lawrenceburg. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-19 *By-laws of Lawrenceburg. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-20 By-laws of Lawrenceburg as amended, adopted May 28, 1999 B-21 *Articles of Incorporation of West Harrison as amended. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-22 *By-laws of West Harrison. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-23 By-laws of West Harrison as amended, adopted May 28, 1999. B-24 *Articles of Incorporation of Miami as amended. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-25 *By-laws of Miami. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-26 By-laws of Miami as amended, adopted May 28, 1999. B-27 *Articles of Incorporation of KO Transmission. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-28 *By-laws of KO Transmission. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-29 By-laws of KO Transmission as amended, adopted May 28, 1999. B-30 *Articles of Incorporation of South Construction. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-31 *By-laws of South Construction. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-32 *Certificate of Incorporation of Investments. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-33 *By-laws of Investments. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-34 *Articles of Incorporation of Cinergy-Cadence, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-35 *Amended Articles of Incorporation of Cinergy-Cadence, Inc. (Exhibit to Cinergy's Form U5S file April 30, 1999.) B-36 *By-laws of Cinergy-Cadence, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-37 *Certificate of Formation of Cadence. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-38 *Amended Articles of Incorporation of Capital & Trading. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-39 *By-laws of Capital & Trading. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-40 Certificate of Formation of CinCap MVC OpCo, LLC. B-41 *Certificate of Formation of CinCap IV, LLC. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-42 *Certificate of Formation of CinCap V, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-43 *Certificate of Formation of CinCap VI, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-44 *Certificate of Formation of CinCap VIII, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-45 *Certificate of Formation of CinCap VII, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-46 Amended Agreement of Limited Liability Company of CinCap VII, LLC B-47 Certificate of Formation of Duke Energy Madison, LLC. B-48 Certificate of Formation of Duke Energy Vermillion, LLC. B-49 *Certificate of Formation of Westwood Operating Company, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-50 *Certificate of Formation of CinPower I, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-51 Amended Agreement of Limited Liability Agreement of CinPower I, LLC. B-52 *Amended Agreement of Limited Liability Company of ProEnergy. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-53 Certificate of Amendment to Certificate of Formation of Cinergy Marketing & Trading, LLC. (The sole purpose of the amendment was to change Producers Energy Marketing, LLC's name to Cinergy Marketing & Trading, LLC.) B-54 Second Amended Agreement of Limited Liability Company of Cinergy Marketing & Trading LLC dated June 8, 1999. B-55 *Certificate of Incorporation of Communications. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-56 *By-laws of Communications. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-57 Certificate of Incorporation of Cinergy Telecommunications Networks Holdings, Inc. B-58 By-laws of Cinergy Telecommunications Networks Holdings, Inc. (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-59 Certificate of Formation of Lattice Communications, LLC. (Filed under cover of Form SE.) B-60 *Articles of Incorporation of Engineering. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-61 *Regulations of Engineering. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-62 *Certificate of Incorporation of Cinergy - Centrus, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-63 *By laws of Cinergy - Centrus, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-64 *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-65 *Certificate of Incorporation of Cinergy - Centrus Communications, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-66 *By-laws of Cinergy - Centrus Communications, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-67 *Certificate of Incorporation of Cinergy Resources, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-68 *By-laws of Cinergy Resources, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-69 *Certificate of Incorporation of Solutions. (Exhibit to Cinergy's Form U5S filed May 1, 1999.) B-70 *By-laws of Solutions. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-71 No information is being filed under the designation of Exhibit B-71. B-72 Certificate of Incorporation of 3036243 Nova Scotia Company. (Filed under cover of Form SE.) B-73 Limited Liability Company Agreement of Cinergy Solutions Limited Partnership. (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-74 *Certificate of Incorporation of Cinergy Business Solutions, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-75 *By-laws of Cinergy Business Solutions, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-76 Amendment of Articles of Rose Technology Group Limited. (Filed under cover of Form SE.) B-77 *Articles of Incorporation of Cinergy Customer Care, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-78 *By-laws of Cinergy Customer Care, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-79 Certificate of Formation of Cinergy EPCOM, LLC. B-80 Certificate of Formation of Cinergy EPCOM College Park, LLC. B-81 Certificate of Incorporation of Cinergy Solutions of Golden, Inc. B-82 *Certificate of Incorporation of Cinergy Solutions of Tuscola, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-84 *By-laws of Cinergy Solutions of Tuscola, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-83 *Certificate of Formation of Energy Equipment Leasing LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-84 *Certificate of Formation of Trigen-Cinergy. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-85 Certificate of Formation of Trigen-Cinergy Solutions of Ashtabula, LLC. B-86 *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-87 *Certificate of Formation of Trigen-Cinergy Solutions of Boca Raton, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-88 *Articles of Organization of Trigen-Cinergy Cincinnati. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-89 Certificate of Formation of Trigen-Cinergy Solutions of College Park, LLC. B-90 Certificate of Formation of Trigen-Cinergy Solutions of Danville, LLC. B-91 *Certificate of Formation of Trigen-Cinergy Illinois. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-92 Certificate of Formation of Trigen-Cinergy Solutions of Lansing LLC. B-93 *Certificate of Formation of Trigen-Cinergy Solutions of Orlando LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-94 Certificate of Formation of Trigen-Cinergy Solutions of Owings Mills LLC. B-95 Certificate of Formation of Trigen-Cinergy Solutions of Owings Mills Energy Equipment Leasing, LLC. B-96 Certificate of Formation of Trigen-Cinergy Solutions of Rochester LLC. B-97 Certificate of Amendment of Trigen-Cinergy Solutions of Silver Grove LLC. (Filed under cover of Form SE.) B-98 Resolutions of Trigen-Cinergy Solutions of Silver Grove LLC. (Filed under cover of Form SE.) B-99 *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-100*Certificate of Formation of Trigen-Cinergy Solutions of Tuscola, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-101*Certificate of Incorporation of Cinergy Supply Network, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-102*By-laws of Cinergy Supply Network, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-103*Articles of Organization of Reliant Services, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-104*Articles of Incorporation of Technology. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-105*By-laws of Technology. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-106*Amended Articles of Incorporation of Enertech. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-107*Regulations of Enertech. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-108*Certificate of Incorporation of Global Resources. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-109*By-laws of Global Resources. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-110*Certificate of Incorporation of Global Power. (Formerly Cinergy Investments MPI, Inc.) (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-111*By-laws of Global Power. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-112*Certificate of Incorporation of Cinergy Global Ely, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-113*By-laws of Cinergy Global Ely, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-114*Articles of Association of EPR Ely Power Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-115*Articles of Association of EPR Ely Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-116 Articles of Association of Ely Power Limited. B-117 Articles of Association of Anglian Straw Limited. B-118 Certificate of Incorporation of Cinergy Global Foote Creek, Inc. B-119 By-laws of Cinergy Global Foote Creek, Inc. B-120Certificate of Formation of Foote Creek III, LLC. (Filed under cover of Form SE.) B-121 Certificate of Incorporation of Cinergy Global Foote Creek II, Inc. B-122 By-laws of Cinergy Global Foote Creek II, Inc. B-123Certificate of Formation of Foote Creek II, LLC. (Filed under cover of Form SE.) B-124*Articles of Association of Cinergy Global Power Services Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-125*Articles of Association of Cinergy Global Power Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-126*Articles of Association of MPI International Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-127*Certificate of Incorporation on name change of MPI International Limited. (Exhibit to Cinergy's Form U5S filed May 1, 1998.) B-128*Articles of Association of Cinergy Global Power (UK) Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-129 Articles of Association of Cinergy Global Trading Limited. B-130*Certificate of Incorporation of Cinergy Global San Gorgonio, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-131*By-laws of Cinergy Global San Gorgonio, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-132*Certificate of Formation of San Gorgonio Westwinds II, LLC. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-133*Certificate of Incorporation of Cinergy Global Holdings, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-134*By-laws of Cinergy Global Holdings, Inc. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-135*Articles of Association of Cinergy Holdings B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-136*Articles of Association of Cinergy Zambia B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-137*Articles of Association of Copperbelt. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-138 *Articles of Association of Cinergy Turbines B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-139*Certificate of Incorporation of EOS I. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-140*Certificate of Incorporation of EOS II. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-141*Articles of Association of Cinergy Hydro B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-142*Articles of Association of Crisa. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-143 Certificate of Incorporation of Cinergy Global Power Iberia, S.A. B-144 Articles of Association of Cinergy Global Power Iberia, S.A. B-145 Certificate of Incorporation of Escambeo, S.L. B-146 Articles of Association of Escambeo, S.L. B-147 Certificate of Incorporation of Parque Eolico de Ascoy, S.A. B-148 Articles of Association of Parque Eolico de Ascoy, S.A. B-149 Certificate of Incorportion of Ventoabrego, S.L. B-150 Articles of Association of Ventoabrego, S.L. B-151*Articles of Association of Vendresse Limited. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-152*Articles of Association of Cinergy 1 B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-153*Statement of Incorporation of Startekor. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-154*Statement of Incorporation of Narva. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-155*Articles of Association of Cinergy Global Resources 1 B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-156*Extract from the Companies Register for Moravske Teplarny a.s. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-157*Extract from the Companies Register for Plzenska Energetika s.r.o. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-158*Articles of Association of Cinergy Global Resources a.s. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-159Articles of Association of Cinergetika U/L a.s. (Filed under cover of Form SE.) B-160Articles of Association of Energetika Chropyne a.s. (Filed under cover of Form SE.) B-161Articles of Association of Teplarna Otrokovice a.s. (Filed under cover of Form SE.) B-162*Articles of Association of Cinergy 2 B.V. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-163*Certificate of Incorporation of Desebro. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-164 Certificate of Incorporation of Northeolic Pico Gallo, S.L. B-165 Articles of Association of Northeolic Pico Gallo, S.L. B-166 Certificate of Incorporation of Desarrollos Eolico El Aguila, S.A. B-167 Articles of Association of Desarrollos Eolico El Aguila, S.A. B-168 Certificate of Incorporation of Sinergia Aragonesa, S.L. B-169 Articles of Association of Sinergia Aragonesa, S.L. B-170 Deed of Incorporation of Cinergy Global Baghabari I B.V. B-171 Certificate of Incorporation of Cinergy Global Baghabari I B.V. B-172 Certificate of Incorporation of Baghabari Power Company Limited. B-173Articles of Association of Baghabari Power Company Limited. (Filed under cover of Form SE.) B-174 Deed of Incorporation of Cinergy Global Baghabari II B.V. B-175 Certificate of Incorporation of Cinergy Global Baghabari II B.V. B-176 Deed of Incorporation of Cinergy Global 3 B.V. B-177 Certificate of Incorporation of Cinergy Global 3 B.V. B-178 Deed of Incorporation of Cinergy Global 4 B.V. B-179 Certificate of Incorporation of Cinergy Global 4 B.V. B-180*Memorandum of Association of Cinergy Global (Cayman) Holdings, Inc. (formerly Cinergy MPI III, 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-181*Articles of Association of Cinergy Global (Cayman) Holdings, Inc. (formerly Cinergy MPI III, Inc.). (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-182*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-183*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-184*Memorandum of Association of Cinergy Global Tsavo Power (formerly Cinergy MPI II, 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-185*Articles of Association of Cinergy Global Tsavo Power (formerly Cinergy MPI II, Inc.). (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-186*Articles of Association of Semutang. (Exhibit to Cinergy's Form U5S filed April 30, 1999.) B-187 No information is being filed under the designation of Exhibit B-187. B-188*Certificate of Incorporation of Cinergy UK. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-189*By-laws of Cinergy UK. (Exhibit to Cinergy's Form U5S filed May 1, 1997.) B-190 By-laws of Cinergy UK as amended, July 15, 1999. B-191*Articles of Incorporation of Argentina. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-192*By-laws of Argentina. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-193*Articles of Incorporation of Costanera. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-194*By-laws of Costanera. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-195*Articles of Incorporation of PSI Energy Argentina, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-196*By-laws of PSI Energy Argentina, Inc. (Exhibit to Cinergy's Form U5S filed May 1, 1996.) B-197 Memorandum of Association of Anglian Straw Limited. B-198Certificate of Incorporation of Ely Power Limited. (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 *Fifty-second Supplemental Indenture between PSI and LaSalle National Bank dated April 30, 1999. (Exhibit to PSI's March 31, 1999, Form 10-Q in File No. 1-3543.) C-14 *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-15 *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-16 *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-17 *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-18 *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-19 *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-20 *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.) C21 *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-22 *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-23 *Sixth Supplemental Indenture dated as of April 30, 1999, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to PSI's March 31, 1999, Form 10-Q in File No. 1-3543.) C-24 *Seventh Supplemental Indenture dated as of October 20, 1999, between PSI and The Fifth Third Bank, as Trustee. (Exhibit to PSI's September 30, 1999, Form 10-Q in File No. 1-3543.) C-25 *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-26 *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-27 *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-28 *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-29 *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-30 *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-31 *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-32 *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-33 *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-34 *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-35 *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-36 *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-37 *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-38 *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-39 *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-40 *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-41 *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-42 *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-43 *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-44 *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-45 *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-46 *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-47 *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-48 *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-49 *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-50 *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-51 *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-52 *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-53 *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-54 *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-55 *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-56 *Fourth Supplemental Indenture between ULH&P and The Fifth Third Bank dated as of September 17, 1999. (Exhibit to ULH&P's September 30, 1999, Form 10-Q in File No. 2-7793.) C-57 *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-58 *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-59 *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-60 *Indenture dated as of April 15, 1999, between Cinergy and The Fifth Third Bank. (Exhibit to Cinergy's March 31, 1999, Form 10-Q in File No. 1-11377.) C-61 *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-62 *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 1998 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 1999. F-3 Consolidating Financial Statements of CG&E for 1999. F-4 Consolidating Financial Statements of Investments for 1999. (Filed pursuant to Rule 104(b).) F-5 Consolidating Financial Statements of Capital & Trading for 1999. (Filed pursuant to Rule 104(b).) F-6 Consolidating Financial Statements of Solutions for 1999. (Filed pursuant to Rule 104(b).) F-7 Consolidating Financial Statements of Cinergy Business Solutions for 1999. (Filed pursuant to Rule 104(b).) F-8 Consolidating Financial Statements of Global Resources for 1999. (Filed pursuant to Rule 104(b).) F-9 Consolidating Financial Statements of Global Power for 1999. (Filed pursuant to Rule 104(b).) F-10 Consolidating Financial Statements of Cinergy Global Resources 1 B.V. (Filed pursuant to Rule 104(b).) F-11 Financial Statements of Cadence for 1999. (Filed pursuant to Rule 104(b).) F-12 Financial Statements of CinCap IV, LLC for 1999. (Filed pursuant to Rule 104(b).) F-13 Summary of Selected Financial Information of Trigen-Cinergy Joint Ventures for 1999. (Filed pursuant to Rule 104(b).) F-14 Financial Statements of Reliant Services, LLC for 1999. (Filed pursuant to Rule 104(b).) F-15 Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. F-16 Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of CG&E. (Filed under cover of Form SE.) F-17 Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form No. 1 of PSI. (Filed under cover of Form SE.) F-18 Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of ULH&P. (Filed under cover of Form SE.) F-19 Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of West Harrison to the Indiana Utility Regulatory Commission (IURC). (Filed under cover of Form SE.) F-20 Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of Lawrenceburg to the IURC. (Filed under cover of Form SE.) F-21 The FERC Form No. 2A for KO Transmission. (Filed under cover of Form SE.) F-22 The Annual Report on Trigen-Cinergy Solutions LLC to the Public Utilities Commission of Ohio. (Filed under the cover of Form SE). F-23 Financial Statements of CinCap V, LLC for 1999. (Filed pursuant to Rule 104(b).) F-24 Financial Statements of Lattice Communications, LLC for 1999. (Filed pursuant to Rule 104(b).) F-25 Financial Statements of Centrus, LLP for 1999. (Filed pursuant to Rule 104(b).) G Financial Data Schedules for Cinergy and subsidiaries. (Included in electronic submission only.) H Organizational chart showing the relationship of EWGs and FUCOs to other system companies. I-1 Financial Statements of EPR Ely Limited for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-2 Financial Statements of Copperbelt for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-3 Financial Statements of EOS I for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-4 Financial Statements of EOS II for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-5 Financial Statements of Crisa for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-6 Financial Statements of Ascoy for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-7 Financial Statements of Narva for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-8 Financial Statements of Teplarny for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-9 Financial Statements of Energetika for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-10 Financial Statements of Cinergetika for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-11 Financial Statements of Chropyne for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-12 Financial Statements of Desebro for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-13 Financial Statements of Semutang for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-14 Financial Statements for Foote Creek III, LLC for the year ended December 31, 1999. (Filed pursuant to Rule 104(b).) I-15 Financial Statements for Cinergy Global Power (UK) Limited for the year ended December 31, 1999. (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).) J-1 Amended 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/Bernard F. Roberts --------------------------------------- Bernard F. Roberts Vice President and Comptroller Date: October 19, 2000 EX-99 2 0002.txt BY-LAWS OF ULH&P ================================================================= THE UNION LIGHT, HEAT AND POWER COMPANY --------- BY-LAWS --------- ADOPTED BY SHAREHOLDERS, APRIL 27, 1948 AMENDED BY BOARD OF DIRECTORS, MAY 3, 1950 AMENDED BY SHAREHOLDERS, MAY 2, 1984 AMENDED BY SHAREHOLDERS, MAY 3, 1989 AMENDED BY SHAREHOLDERS, JUNE 16, 1995 AMENDED BY SHAREHOLDERS, MAY 8, 1996 AMENDED EFFECTIVE JULY 24, 1997 AMENDED BY SHAREHOLDERS, MAY 26, 1999 ================================================================= TABLE OF CONTENTS BY-LAWS THE UNION LIGHT, HEAT AND POWER COMPANY ARTICLE I Offices Page Section 1. Offices................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting.........................................1 2. Notice of Annual Meeting...............................1 3. Special Meetings.......................................1 4. Notice of Special Meeting..............................1 5. Waiver of Notice.......................................1 6. Quorum.................................................1 7. Voting.................................................2 8. Written Consent of Shareholders in Lieu of Meeting.....2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies.............2 2. Annual Organization Meeting........................3 3. Regular Meetings...................................3 4. Special Meetings...................................3 5. Notice of Meetings.................................3 6. Quorum.............................................3 7. Compensation of Directors..........................3 8. Executive Committee................................3 9. Other Committees...................................4 10. Actions of Board ..................................4 ARTICLE IV Officers Section 1 Officers...........................................4 2. Subordinate Officers...............................4 3. Chairman of the Board..............................4 4. Vice Chairman......................................5 5. Chief Executive Officer............................5 6. Chief Operating Officer............................5 7. President..........................................5 i Page 8. Vice Presidents....................................5 9.(a). Secretary..........................................5 9.(b). Assistant Secretaries..............................6 10.(a). Treasurer..........................................6 10.(b). Assistant Treasurers...............................6 11.(a). Comptroller........................................6 11.(b). Assistant Comptrollers.............................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions........................................7 2. Indemnification....................................8 3. Mandatory Indemnification..........................8 4. Advance for Expenses...............................9 5. Determination and Authorization of Indemnification.................................9 6. Indemnification of Officers, Employees, and Agents..............................10 7. Insurance..........................................10 8. Application of this Article........................10 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates.................11 2. Transfer of Shares.................................11 3. Appointment of Transfer Agents and Registrars......11 4. Closing of Transfer Books or Taking Record of Shareholders....................................11 5. Lost Stock Certificates............................11 ARTICLE VII Dividends Section 1. Dividends..........................................12 ARTICLE VIII Fiscal Year Section 1. Fiscal Year........................................12 ii Page ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc......................12 ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice........................13 ARTICLE XI Corporate Seal Section 1. Corporate Seal.....................................13 ARTICLE XII Amendment Section 1. Amendment..........................................13 iii BY-LAWS OF THE UNION LIGHT, HEAT AND POWER COMPANY ARTICLE I OFFICES SECTION 1. OFFICES. The registered office of the Corporation shall be located in the City of Louisville, Jefferson County, Commonwealth of Kentucky. The Corporation may establish branch offices and conduct and carry on business at such other places within or without the Commonwealth of Kentucky as the Board of Directors may from time to time fix or designate, and any business conducted or carried on at such other place or places shall be as binding and effectual as if transacted at the registered office of the Corporation. ARTICLE II SHAREHOLDERS' MEETINGS SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders may be held either within or without the Commonwealth of Kentucky, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. SECTION 2. NOTICE OF ANNUAL MEETINIG. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days, and not more than forty (40) days prior to the meeting. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting, or by the persons who hold in the aggregate one-fifth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. SECTION 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, not less than ten (10) nor more than thirty-five (35) days after the receipt of said request. SECTION 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder at any time before or after the meeting. SECTION 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 7. VOTING. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. Cumulative voting shall be permitted only as expressly required by statute. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required or permitted by statute, the Restated Articles of Incorporation of the Corporation, or these By-Laws, to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a written consent in lieu of a meeting, setting forth the actions so taken, shall be signed by all the shareholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such shareholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III BOARD OF DIRECTORS SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. The business and affairs of the C0rporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than three (3) persons and not more than seven (7), the exact number of which may be fixed or changed either by the affirmative vote of the majority of the shares represented and entitled to vote at any meeting of the shareholders called for the purpose of electing directors, or by the affirmative vote of the majority of the directors then in office at any stated or special meeting of the Board of Directors; provided, however, that the board may be subject to certain limitations as expressly provided for under and pursuant to Kentucky Revised Statutes I271B.8-030(2), or such similar successor governing statute. Directors shall be elected annually by the shareholders at the annual meeting, and each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Kentucky) for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Kentucky), and upon such notice, as the Board of Directors may from time to time determine. SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. SECTION 5. NOTICE OF MEETINGS. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. SECTION 6. QUORUM. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. SECTION 7. COMPENSATION OF DIRECTORS. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month, or both. The same payment may also be made to anyone other than a director officially called to attend any such meeting. SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution passed by a majority of the whole Board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the Board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the Board may determine. SECTION 10. ACTIONS OF BOARD. Unless otherwise provided by the Restated Articles 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 of the Corporation, 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 such 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 specifies a prior or subsequent effective date. ARTICLE IV OFFICERS SECTION 1. OFFICERS. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of Directors at any meeting of the Board of Directors. SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the Board's direction and control, be the Board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall 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. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. SECTION 7. THE PRESIDENT. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer or Chief Operating Officer. SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as the Board of Directors shall, from time to time, require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. SECTION 9(A). THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall keep in safe custody the seal of the Corporation, and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer or President. SECTION 9(B). ASSISTANT SECRETARIES. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. SECTION 10(A). THE TREASURER. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the Board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. SECTION 10(B). ASSISTANT TREASURERS. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. SECTION 11(A). THE COMPTROLLER. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President and a Vice President. SECTION 11(B). ASSISTANT COMPTROLLERS. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SECTION 1. DEFINITIONS. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. B. "Director" means an individual who is or was a Director of the Corporation or an individual who, while a Director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A Director shall be considered to be serving an employee benefit plan at the Corporation's request if his or her duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a Director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a Director, the office of Director in the Corporation, and (2) When used with respect to an individual other than a Director, as contemplated in Section 6, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" shall not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal. SECTION 2. INDEMNIFICATION. A. Except as provided in subsection (D) of this Section, the Corporation shall indemnify an individual made a party to a proceeding because he or she is or was a Director against liability incurred in the proceeding if: (1) He or she conducted himself or herself in good faith; and (2) He or she reasonably believed: (a) In the case of conduct in his or her official capacity with the Corporation, that his or her conduct was in its best interest; and (b) In all other cases, that his or her conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. B. A Director's conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in and beneficiaries of the plan shall be conduct that satisfies the requirement of subsection A(2)(b) of this Section. C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not be, of itself, determinative that the Director did not meet the standard of conduct described in this Section. D. The Corporation may not indemnify a Director under this Section: (1) In connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation; or (2) In connection with any other proceeding charging improper personal benefit to him or her, whether or not involving action in his or her official capacity, in which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her. E. Indemnification permitted under this Section in connection with a proceeding by or in the right of the Corporation shall be limited to reasonable expenses incurred in connection with the proceeding. SECTION 3. MANDATORY INDEMNIFICATION. Unless limited by the Articles of Incorporation, the Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she is or was a Director of the Corporation against reasonable expenses incurred by him or her in connection with the proceeding. SECTION 4. ADVANCE FOR EXPENSES. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a Director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The Director furnishes the Corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in Section 2; (2) The Director furnishes the Corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this article. B. The undertaking required by subsection A(2) of this Section shall be an unlimited general obligation of the Director but shall not be required to be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 5. SECTION 5. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION. A. The Corporation shall not indemnify a Director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because he or she has met the standard of conduct set forth in Section 2. B. The determination shall be made: (1) By the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the proceeding; (2) If a quorum cannot be obtained under subsection B(1) of this Section, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding; (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subsection B(1) and (2) of this Section; or (b) If a quorum of the Board of Directors cannot be obtained under subsection B(1) of this Section and a committee cannot be designated under subsection B(2) of this Section, selected by majority vote of the full Board of Directors (in which selection Directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of Directors who are at the time parties to the proceeding shall not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) of this Section to select counsel. SECTION 6. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS. Unless the Corporation's Articles of Incorporation provide otherwise: A. An officer of the Corporation who is not a Director shall be entitled to mandatory indemnification under Section 3, and is entitled to apply for court-ordered indemnification under the Kentucky Business Corporation Act, in each case to the same extent as a Director; B. The Corporation may indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation who is not a Director to the same extent as to a Director; and C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a Director to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, By-Laws, general or specific action of the Board of Directors, or contract. SECTION 7. INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a Director, officer, employee, or agent of the Corporation, or who, while a Director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a Director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him or her against the same liability under Section 2 or Section 3. SECTION 8. APPLICATION OF THIS ARTICLE. A. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the By-Laws, any agreement, vote of shareholders or disinterested Directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. B. This Article shall not limit the Corporation's power to pay or reimburse expenses incurred by a Director in connection with his or her appearance as a witness at a proceeding at a time when he or she has not been made a named defendant or respondent to the proceeding. ARTICLE VI CAPITAL STOCK SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. The Board of Directors may fix a time not exceeding forty (40) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. SECTION 5. LOST STOCK CERTIFICATES. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII DIVIDENDS SECTION 1. DIVIDENDS. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII FISCAL YEAR SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX CONTRACTS, CHECKS, NOTES, ETC. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X NOTICE AND WAIVER OF NOTICE SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required to be given by these By-Laws to a Director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI CORPORATE SEAL SECTION 1. CORPORATE SEAL. The corporate seal of the Corporation shall consist of a metallic stamp, circular in form, bearing in its center the word "Seal", and on the outer edge the name of the Corporation. ARTICLE XII AMENDMENT SECTION 1. AMENDMENT. These By-Laws may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a two-thirds majority of the voting power on such proposal. EX-99 3 0003.txt AMENDED REGULATIONS OF TRI-STATE =============================================================================== TRI-STATE IMPROVEMENT COMPANY --------- REGULATIONS --------- Adopted by Shareholders, January 22, 1964 Amended by Shareholders, May 2, 1984 Amended by Shareholders, May 6, 1987 Amended by Shareholders, May 3, 1989 Amended by Shareholders, June 16, 1995 Amended by Shareholders, May 8, 1996 Amended by Shareholders, May 28, 1999 ============================================================================= TABLE OF CONTENTS REGULATIONS TRI-STATE IMPROVEMENT COMPANY ARTICLE I Offices Page Section 1. Offices ..................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting ...........................................1 2. Notice of Annual Meeting .................................1 3. Special Meetings .........................................1 4. Notice of Special Meeting.................................1 5. Waiver of Notice..........................................1 6. Quorum....................................................1 7. Voting....................................................2 8. Written Consent of Shareholders in Lieu of Meeting........2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies....................2 2. Annual Organization Meeting...............................3 3. Regular Meetings..........................................3 4. Special Meetings..........................................3 5. Notice of Meetings........................................3 6. Quorum....................................................3 7. Compensation of Directors.................................3 8. Executive Committee.......................................3 9. Other Committees..........................................4 10. Actions of Board..........................................4 ARTICLE IV Officers Section 1. Officers..................................................4 2. Subordinate Officers......................................4 3. Chairman of the Board.....................................4 4. Vice Chairman.............................................5 5. Chief Executive Officer...................................5 6. Chief Operating Officer...................................5 7. President.................................................5 8. Vice Presidents...........................................5 9.(a). Secretary.................................................5 (b). Assistant Secretaries.....................................6 i Page 10.(a). Treasurer ................................................6 (b). Assistant Treasurers......................................6 11.(a). Comptroller...............................................6 (b). Assistant Comptrollers....................................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Indemnification of Directors, Officers, Employees, and Agents.....................................7 2. Advances for Litigation Expenses may be Made..............8 3. Indemnification Nonexclusive..............................8 4. Indemnity Insurance.......................................8 5. Payments of Expenses Not Limited..........................9 6. Survival of Indemnification...............................9 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates........................9 2. Transfer of Shares........................................9 3. Closing of Transfer Books or Taking Record of Shareholders...........................................9 4. Lost Stock Certificates...................................9 ARTICLE VII Dividends Section 1. Dividends ...............................................10 ARTICLE VIII Fiscal Year Section 1. Fiscal Year .............................................10 ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. .........................10 ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice .............................11 ii Page ARTICLE XI Amendment Section 1. Amendment ...............................................11 iii REGULATIONS OF TRI-STATE IMPROVEMENT COMPANY ARTICLE I Offices SECTION 1. OFFICES. The location of the Corporation's principal office shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The Corporation may, in addition to its principal office in the State of Ohio, establish and maintain an office or offices elsewhere in Ohio and in such other states and places as the Board of Directors may from time to time find necessary or desirable, at which the books, documents and papers of the Corporation may be kept. ARTICLE II Shareholders' Meetings SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders may be held either within or without the state of Ohio, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. SECTION 2. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate twenty-five (25) percent of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. SECTION 4. NOTICE OF SPECIAL MEETING. Notice of special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days and not more than forty-five (45) days prior to the meeting. SECTION 5. WAIVER OF NOTICE. Notice of the time, place and purpose of any meeting of shareholders may be waived by the written assent of every shareholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. SECTION 6. QUORUM. The holders of shares entitling them to exercise a majority of the voting power, present in person or by proxy at any meeting of the shareholders, unless otherwise specified by law, shall constitute a quorum. If, however, at any meeting of the shareholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the shareholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice, other than by announcement at the meeting at which such adjournment is taken, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 7. VOTING. At each meeting of the shareholders, except as otherwise provided by statute or the Articles of Incorporation, every holder of record of stock entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date next preceding the day of the meeting. Cumulative voting shall be permitted only as expressly required by statute. At any meeting of shareholders, a list of shareholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required or permitted by statute, the Articles of Incorporation of the Corporation, or these Regulations, to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a written consent in lieu of a meeting, setting forth the actions so taken, shall be signed by all the shareholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such shareholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Board of Directors SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. Except as otherwise provided by statute, all the corporate powers, business and property of the Corporation shall be exercised, conducted and controlled by a Board of Directors (who need not be shareholders) consisting of not less than three (3) persons and not more than seven (7), the exact number of which may be fixed or changed either by the affirmative vote of the holders of a majority of the shares represented and entitled to vote at any meeting of the shareholders called for the purpose of electing directors, or by the affirmative vote of the majority of the directors then in office at any stated or special meeting of the Board of Directors. The directors shall be elected annually and each director shall continue in office until the annual meeting held next after his election, and until his successor shall have been elected and qualified. Any member of the Board of Directors may resign at any time by giving written notice to the President or to the Secretary of the Corporation. All vacancies occurring in the Board of Directors, may be filled by the remaining directors at any stated or special meeting. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after each annual election, the newly elected directors may meet forthwith (either within or without the State of Ohio) for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at any reasonable time and place (either within or without the State of Ohio), and upon such notice, as the Board of Directors may from time to time determine. SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. SECTION 5. NOTICE OF MEETINGS. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these Regulations. SECTION 6. QUORUM. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting, at which a quorum is present shall be the act of the Board of Directors. SECTION 7. COMPENSATION OF DIRECTORS. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month, or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution adopted by a majority of the whole board, designate annually three (3) or more of their number, to constitute an Executive Committee, and may delegate to such committee power to exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. Each member of the Executive Committee shall continue to be a member thereof only during the pleasure of a majority of the whole board. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. SECTION 10. ACTIONS OF BOARD. Unless otherwise provided by the Articles of Incorporation of the Corporation or these Regulations, any action required or permitted to be taken at any meeting of the Board of Directors of the Corporation, 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 such 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 specifies a prior or subsequent effective date. ARTICLE IV Officers SECTION 1. OFFICERS. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two of the offices of Vice President, Secretary and Treasurer may be combined in one person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of Directors at any meeting of the Board of Directors. SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall 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. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of chief operating officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. SECTION 7. THE PRESIDENT. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. SECTION 9(a). THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) ASSISTANT SECRETARIES. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. SECTION 10(a). THE TREASURER. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) ASSISTANT TREASURERS. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. SECTION 11(a). THE COMPTROLLER. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) ASSISTANT COMPTROLLERS. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents SECTION 1. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS. (A) The Corporation shall indemnify or agree to indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (B) The Corporation shall indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any of the following: (1) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the court of common pleas, or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper. (2) Any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio Revised Code. (C) To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the foregoing paragraphs of this Article, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (D) Any indemnification under Paragraphs (A) and (B) of Section 1 of this Article, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such Paragraphs (A) and (B). Such determination shall be made as follows: (1) by a majority vote of a quorum consisting of directors of the indemnifying Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding; (2) if the quorum described in (D)(1) of this Section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years; (3) by the shareholders; or (4) by the court of common pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under (D)(1) of this Section or by independent legal counsel under (D)(2) of this Section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under (B) of this Section, and within 10 days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. SECTION 2. ADVANCES FOR LITIGATION EXPENSES MAY BE MADE. Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, or agent in defending any action, suit, or proceeding referred to in Section 1 of this Article, may be paid by the Corporation as they are incurred in advance of the final disposition of the action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the Corporation. SECTION 3. INDEMNIFICATION NONEXCLUSIVE. The indemnification provided by this Article shall not be exclusive of and shall be in addition to any other rights granted to those seeking indemnification under these Regulations, any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. SECTION 4. INDEMNITY INSURANCE. The Corporation may purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under this Section. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest. SECTION 5. PAYMENTS OF EXPENSES NOT LIMITED. The indemnification provided by Sections 1(A) and (B) of this Article does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to Sections 2, 3, and 4 of this Article. Sections 1(A) and (B) of this Article do not create any obligation to repay or return payments made by the Corporation pursuant to Sections 2, 3, or 4 of this Article. SECTION 6. SURVIVAL OF INDEMNIFICATION. As used in this Article, references to "Corporation" include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, or agent of such a constituent corporation, or is or was serving at the request of such constituent corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, shall stand in the same position under this Article with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. ARTICLE VI Capital Stock SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. SECTION 3. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. The Board of Directors may fix a time not exceeding forty-five (45) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. SECTION 4. LOST STOCK CERTIFICATES. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends SECTION 1. DIVIDENDS. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with applicable statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required to be given by these Regulations to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these Regulations may be waived by the person entitled to such notice. ARTICLE XI Amendment SECTION 1. AMENDMENT. These Regulations may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a two-thirds majority of the voting power on such proposal. EX-99 4 0004.txt AMENDED BY-LAWS OF LAWRENCEBURG ================================================================= LAWRENCEBURG GAS COMPANY --------- BY-LAWS --------- Adopted by Board of Directors, May 13, 1965 Amended by Shareholders, May 2, 1984 Amended by Board of Directors, May 11, 1988 Amended by Board of Directors, May 3, 1989 Amended by Shareholders, October 24, 1994 Amended by Board of Directors, June 16, 1995 Amended by Shareholders, May 8, 1996 Amended by Board of Directors, December 18, 1997 Amended by Shareholders, May 28, 1999 ================================================================= TABLE OF CONTENTS BY-LAWS LAWRENCEBURG GAS COMPANY ARTICLE I Offices Page Section 1. Offices....................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting.............................................1 2. Notice of Annual Meeting...................................1 3. Special Meetings...........................................1 4. Notice of Special Meeting..................................1 5. Waiver of Notice...........................................1 6. Quorum.....................................................1 7. Voting.....................................................2 8. Written Consent of Shareholders in Lieu of Meeting.........2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies.....................2 2. Annual Organization Meeting................................2 3. Regular Meetings...........................................3 4. Special Meetings...........................................3 5. Notice of Meetings.........................................3 6. Quorum.....................................................3 7. Compensation of Directors..................................3 8. Executive Committee........................................3 9. Other Committees...........................................3 10. Actions of Board...........................................3 ARTICLE IV Officers Section 1. Officers...................................................4 2. Subordinate Officers.......................................4 3. Chairman of the Board......................................4 4. Vice Chairman..............................................4 5. Chief Executive Officer....................................5 6. Chief Operating Officer....................................5 7. President..................................................5 8. Vice Presidents............................................5 9.(a). Secretary..................................................5 9.(b). Assistant Secretaries......................................5 Page 10.(a). Treasurer..................................................5 10.(b). Assistant Treasurers.......................................6 11.(a). Comptroller................................................6 11.(b). Assistant Comptrollers.....................................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions................................................6 2. Basis......................................................7 3. Authorized.................................................8 4. Before Final Disposition of Proceedings....................8 5. Judicial Order.............................................8 6. Procedure for Determining Amount...........................9 7. Officers, Employees, or Agents.............................9 8. Insurance..................................................9 9. Remedy Not Exclusive of Other Rights......................10 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates........................10 2. Transfer of Shares........................................10 3. Appointment of Transfer Agents and Registrars.............10 4. Closing of Transfer Books or Taking Record of Shareholders....................................11 5. Lost Stock Certificates...................................11 ARTICLE VII Dividends Section 1. Dividends.................................................11 ARTICLE VIII Fiscal Year Section 1. Fiscal Year...............................................12 ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc.............................12 ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice...............................12 ARTICLE XI Corporate Seal Page Section 1. Corporate Seal............................................12 ARTICLE XII Amendment Section 1. Amendment.................................................12 BY-LAWS OF LAWRENCEBURG GAS COMPANY ARTICLE I Offices SECTION 1. OFFICES. The registered office of the Corporation shall be in the City of Indianapolis, County of Marion, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. SECTION 2. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. SECTION 4. NOTICE OF SPECIAL MEETING. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. SECTION 5. WAIVER OF NOTICE. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. SECTION 6. QUORUM. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 7. VOTING. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required or permitted by statute, the Amended and Restated Articles of Incorporation of the Corporation, or these By-Laws, to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a written consent in lieu of a meeting, setting forth the actions so taken, shall be signed by all the shareholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such shareholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Board of Directors SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than three (3) persons nor more than seven (7), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana), for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. SECTION 5. NOTICE OF MEETINGS. Notice of meeting shall be given to each director in accordance with Article X, Section 1, of these By-Laws. SECTION 6. QUORUM. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. SECTION 7. COMPENSATION OF DIRECTORS. Each director of the Corporation (other than Directors who are paid salaries by the Corporation or by The Cincinnati Gas & Electric Company or by any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fee as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. SECTION 10. ACTIONS OF BOARD. Unless otherwise provided by the Amended and Restated Articles 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 of the Corporation, 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 such 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 specifies a prior or subsequent effective date. ARTICLE IV Officers SECTION 1. OFFICERS. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall 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. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. SECTION 7. THE PRESIDENT. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. SECTION 9(a). THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall keep in safe custody the seal of the Corporation, and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) ASSISTANT SECRETARIES. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. SECTION 10(a). THE TREASURER. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) ASSISTANT TREASURERS. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. SECTION 11(a). THE COMPTROLLER. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) ASSISTANT COMPTROLLERS. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents SECTION 1. DEFINITIONS. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. SECTION 2. BASIS. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. SECTION 3. AUTHORIZED. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. SECTION 4. BEFORE FINAL DISPOSITION OF PROCEEDINGS. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. SECTION 5. JUDICIAL ORDER. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. SECTION 6. PROCEDURE FOR DETERMINING AMOUNT. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. SECTION 7. OFFICERS, EMPLOYEES, OR AGENTS. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. SECTION 8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. SECTION 9. REMEDY NOT EXCLUSIVE OF OTHER RIGHTS. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. B. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. The Board of Directors may fix a time not exceeding thirty (30) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. SECTION 5. LOST STOCK CERTIFICATES. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends SECTION 1. DIVIDENDS. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distribution is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal SECTION 1. CORPORATE SEAL. The corporate seal shall have inscribed thereon the name of the Corporation and Lawrenceburg, Indiana. ARTICLE XII Amendment SECTION 1. AMENDMENT. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99 5 0005.txt AMENDED BY-LAWS OF WEST HARRISON =============================================================================== THE WEST HARRISON GAS AND ELECTRIC COMPANY --------- BY-LAWS --------- ADOPTED BY BOARD OF DIRECTORS, FEBRUARY 26, 1948 AMENDED BY SHAREHOLDERS, MAY 2, 1984 AMENDED BY BOARD OF DIRECTORS, MAY 11, 1988 AMENDED BY BOARD OF DIRECTORS, MAY 3, 1989 AMENDED BY SHAREHOLDERS, OCTOBER 24, 1994 AMENDED BY BOARD OF DIRECTORS, JUNE 16, 1995 AMENDED BY SHAREHOLDERS, MAY 8, 1996 AMENDED BY BOARD OF DIRECTORS, DECEMBER 18, 1997 AMENDED BY SHAREHOLDERS, MAY 28, 1999 ============================================================================== TABLE OF CONTENTS BY-LAWS THE WEST HARRISON GAS AND ELECTRIC COMPANY ARTICLE I Offices Page Section 1. Offices.....................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting..............................................1 2. Notice of Annual Meeting....................................1 3. Special Meetings............................................1 4. Notice of Special Meeting...................................1 5. Waiver of Notice............................................1 6. Quorum......................................................1 7. Voting......................................................2 8. Written Consent of Shareholders in Lieu of Meeting..........2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies......................2 2. Annual Organization Meeting.................................3 3. Regular Meetings............................................3 4. Special Meetings............................................3 5. Notice of Meetings..........................................3 6. Quorum......................................................3 7. Compensation of Directors...................................3 8. Executive Committee.........................................3 9. Other Committees............................................3 10. Actions of Board............................................4 ARTICLE IV Officers Section 1. Officers....................................................4 2. Subordinate Officers........................................4 3. Chairman of the Board.......................................4 4. Vice Chairman...............................................4 5. Chief Executive Officer.....................................5 6. Chief Operating Officer.....................................5 7. President...................................................5 8. Vice Presidents.............................................5 9.(a). Secretary...................................................5 9.(b). Assistant Secretaries.......................................5 1 Page 10.(a). Treasurer...................................................5 10.(b). Assistant Treasurers........................................6 11.(a). Comptroller.................................................6 11.(b). Assistant Comptrollers......................................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions.................................................6 2. Basis.......................................................7 3. Authorized..................................................8 4. Before Final Disposition of Proceedings.....................8 5. Judicial Order..............................................8 6. Procedure for Determining Amount............................9 7. Officers, Employees, or Agents..............................9 8. Insurance..................................................10 9. Remedy Not Exclusive of Other Rights.......................10 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates.........................10 2. Transfer of Shares.........................................10 3. Appointment of Transfer Agents and Registrars..............11 4. Closing of Transfer Books or Taking Record of Shareholders.....................................11 5. Lost Stock Certificates....................................11 ARTICLE VII Dividends Section 1. Dividends..................................................11 ARTICLE VIII Fiscal Year Section 1. Fiscal Year................................................12 ARTICLE IX Contracts,Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc..............................12 ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice................................12 ARTICLE XI Amendment Page Section 1. Amendment..................................................12 BY-LAWS OF THE WEST HARRISON GAS AND ELECTRIC COMPANY ARTICLE I Offices SECTION 1. OFFICES. The registered office of the Corporation shall be in the City of Indianapolis, County of Marion, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. SECTION 2. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. SECTION 4. NOTICE OF SPECIAL MEETING. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. SECTION 5. WAIVER OF NOTICE. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. SECTION 6. QUORUM. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. 1 If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 7. VOTING. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the Agent of the Corporation having charge of the transfer of shares. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required or permitted by statute, the Articles of Incorporation of the Corporation, or these By-Laws, to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a written consent in lieu of a meeting, setting forth the actions so taken, shall be signed by all the shareholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such shareholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Board of Directors SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than three (3) persons nor more than seven (7), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. 2 SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana), for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. SECTION 5. NOTICE OF MEETINGS. Notice of meeting shall be given to each director in accordance with Article X, Section 1, of these By-Laws. SECTION 6. QUORUM. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. SECTION 7. COMPENSATION OF DIRECTORS. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fee as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. SECTION 10. ACTIONS OF BOARD. Unless otherwise provided by the Articles 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 of the Corporation, 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 such 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 specifies a prior or subsequent effective date. ARTICLE IV Officers SECTION 1. OFFICERS. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. 3 SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall 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. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. SECTION 7. THE PRESIDENT. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. SECTION 9(a). THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) ASSISTANT SECRETARIES. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. SECTION 10(a). THE TREASURER. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b). ASSISTANT TREASURERS. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. SECTION 11(a). THE COMPTROLLER. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) ASSISTANT COMPTROLLERS. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents SECTION 1. DEFINITIONS. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. 4 B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. SECTION 2. BASIS. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. SECTION 3. AUTHORIZED. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. SECTION 4. BEFORE FINAL DISPOSITION OF PROCEEDINGS. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. SECTION 5. JUDICIAL ORDER. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. 5 SECTION 6. PROCEDURE FOR DETERMINING AMOUNT. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. SECTION 7. OFFICERS, EMPLOYEES, OR AGENTS. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. 6 SECTION 8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. SECTION 9. REMEDY NOT EXCLUSIVE OF OTHER RIGHTS. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. The Board of Directors may fix a time not exceeding thirty (30) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. SECTION 5. LOST STOCK CERTIFICATES. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends SECTION 1. DIVIDENDS. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. 7 ARTICLE VIII Fiscal Year SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Amendment SECTION 1. AMENDMENT. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99 6 0006.txt AMENDED BY-LAWS OF MIAMI =============================================================================== MIAMI POWER CORPORATION --------- BY-LAWS --------- Adopted by Board of Directors, February 26, 1948 Amended by Shareholders, May 2, 1984 Amended by Board of Directors, May 11, 1988 Amended by Board of Directors, May 3, 1989 Amended by Shareholders, October 24, 1994 Amended by Board of Directors, June 16, 1995 Amended by Shareholders, May 8, 1996 Amended by Board of Directors, December 18, 1997 Amended by Shareholders, May 28, 1999 ============================================================================ TABLE OF CONTENTS BY-LAWS MIAMI POWER CORPORATION ARTICLE I Offices Page Section 1. Offices....................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting.............................................1 2. Notice of Annual Meeting...................................1 3. Special Meetings...........................................1 4. Notice of Special Meeting..................................1 5. Waiver of Notice...........................................1 6. Quorum.....................................................1 7. Voting.....................................................2 8. Written Consent of Shareholders in Lieu of Meeting.........2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies.....................2 2. Annual Organization Meeting................................3 3. Regular Meetings...........................................3 4. Special Meetings...........................................3 5. Notice of Meetings.........................................3 6. Quorum.....................................................3 7. Compensation of Directors..................................3 8. Executive Committee........................................3 9. Other Committees...........................................3 10. Actions of Board............................................4 ARTICLE IV Officers Section 1. Officers...................................................4 2. Subordinate Officers.......................................4 3. Chairman of the Board......................................4 4. Vice Chairman..............................................4 5. Chief Executive Officer....................................4 6. Chief Operating Officer....................................5 7. President..................................................5 8. Vice Presidents............................................5 9.(a). Secretary..................................................5 9.(b). Assistant Secretaries......................................5 Page 10.(a). Treasurer..................................................5 10.(b). Assistant Treasurers.......................................6 11.(a). Comptroller................................................6 11.(b). Assistant Comptrollers.....................................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions................................................6 2. Basis......................................................7 3. Authorized.................................................8 4. Before Final Disposition of Proceedings....................8 5. Judicial Order.............................................8 6. Procedure for Determining Amount...........................9 7. Officers, Employees, or Agents.............................9 8. Insurance.................................................10 9. Remedy Not Exclusive of Other Rights......................10 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates........................10 2. Transfer of Shares........................................10 3. Appointment of Transfer Agents and Registrars.............11 4. Closing of Transfer Books or Taking Record of Shareholders....................................11 5. Lost Stock Certificates...................................11 ARTICLE VII Dividends Section 1. Dividends.................................................11 ARTICLE VIII Fiscal Year Section 1. Fiscal Year...............................................12 ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc.............................12 ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice...............................12 ARTICLE XI Corporate Seal Page Section 1. Corporate Seal............................................12 ARTICLE XII Amendment Section 1. Amendment.................................................12 BY-LAWS OF MIAMI POWER CORPORATION ARTICLE I Offices SECTION 1. OFFICES. The registered office of the Corporation shall be in the City of Indianapolis, County of Marion, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. SECTION 2. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. SECTION 4. NOTICE OF SPECIAL MEETING. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. SECTION 5. WAIVER OF NOTICE. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. SECTION 6. QUORUM. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 7. VOTING. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Any action required or permitted by statute, the Articles of Incorporation of the Corporation, or these By-Laws, to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice, and without a vote, if a written consent in lieu of a meeting, setting forth the actions so taken, shall be signed by all the shareholders entitled to vote thereon. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such shareholders, in person or by attorney or proxy duly appointed in writing, and filed with the records of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein. ARTICLE III Board of Directors SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than three (3) persons nor more than seven (7), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana) for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days' written notice given by the Secretary of the Corporation. SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. SECTION 5. NOTICE OF MEETINGS. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. SECTION 6. QUORUM. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. SECTION 7. COMPENSATION OF DIRECTORS. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fees as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. SECTION 10. ACTIONS OF BOARD. Unless otherwise provided by the Articles 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 of the Corporation, 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 such 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 specifies a prior or subsequent effective date. ARTICLE IV Officers SECTION 1. OFFICERS. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall 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. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. SECTION 7. THE PRESIDENT. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. SECTION 9(a). THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall keep in safe custody the seal of the Corporation, and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) ASSISTANT SECRETARIES. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. SECTION 10(a). THE TREASURER. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) ASSISTANT TREASURERS. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. SECTION 11(a). THE COMPTROLLER. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) ASSISTANT COMPTROLLERS. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents SECTION 1. DEFINITIONS. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. SECTION 2. BASIS. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. SECTION 3. AUTHORIZED. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. SECTION 4. BEFORE FINAL DISPOSITION OF PROCEEDINGS. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. SECTION 5. JUDICIAL ORDER. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. SECTION 6. PROCEDURE FOR DETERMINING AMOUNT. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. SECTION 7. OFFICERS, EMPLOYEES, OR AGENTS. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. SECTION 8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. SECTION 9. REMEDY NOT EXCLUSIVE OF OTHER RIGHTS. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. B. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. The Board of Directors may fix a time not exceeding thirty (30) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. SECTION 5. LOST STOCK CERTIFICATES. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends SECTION 1. DIVIDENDS. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal SECTION 1. CORPORATE SEAL. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Indiana." ARTICLE XII Amendment SECTION 1. AMENDMENT. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99 7 0007.txt AMENDED BY-LAWS OF KO TRANSMISSION ================================================================= KO TRANSMISSION COMPANY --------- BY-LAWS --------- ======================================================================== Adopted: May 20, 1994 Amended by Shareholders: October 24, 1994 Amended by Shareholders: June 16, 1995 Amended by Shareholders: May 8, 1996 Amended Effective: July 24, 1997 Amended by Shareholders: May 28, 1999 TABLE OF CONTENTS BY-LAWS KO TRANSMISSION COMPANY ARTICLE I Offices Page Section 1. Offices.....................................................1 ARTICLE II Shareholders' Meetings Section 1. Annual Meeting..............................................1 2. Notice of Annual Meeting....................................1 3. Special Meetings............................................1 4. Notice of Special Meeting...................................1 5. Waiver of Notice............................................1 6. Quorum......................................................1 7. Voting......................................................2 8. Written Consent of Shareholders in Lieu of Meeting..........2 ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies......................2 2. Annual Organization Meeting.................................3 3. Regular Meetings............................................3 4. Special Meetings............................................3 5. Notice of Meetings..........................................3 6. Quorum......................................................3 7. Compensation of Directors...................................3 8. Executive Committee.........................................3 9. Other Committees............................................4 10. Actions of Board............................................4 ARTICLE IV Officers Section 1. Officers....................................................4 2. Subordinate Officers........................................4 3. Chairman of the Board.......................................4 4. Vice Chairman...............................................5 5. Chief Executive Officer.....................................5 6. Chief Operating Officer.....................................5 7. President...................................................5 8. Vice Presidents.............................................5 i Page 9.(a). Secretary...................................................5 9.(b). Assistant Secretaries.......................................5 10.(a). Treasurer...................................................6 10.(b). Assistant Treasurers........................................6 11.(a). Comptroller.................................................6 11.(b). Assistant Comptrollers......................................6 ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions.................................................7 2. Indemnification.............................................7 3. Mandatory Indemnification...................................8 4. Advance for Expenses........................................8 5. Determination and Authorization of Indemnification..........9 6. Indemnification of Officers, Employees, and Agents.........10 7. Insurance..................................................10 8. Application of this Article................................10 ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates.........................10 2. Transfer of Shares.........................................11 3. Appointment of Transfer Agents and Registrars..............11 4. Closing of Transfer Books or Taking Record of Shareholders.....................................11 5. Lost Stock Certificates....................................11 ARTICLE VII Dividends Section 1. Dividends..................................................11 ARTICLE VIII Fiscal Year Section 1. Fiscal Year................................................12 ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc..............................12 ii ARTICLE X Notice and Waiver of Notice Page Section 1. Notice and Waiver of Notice................................12 ARTICLE XI Amendment Section 1. Amendment..................................................12 iii BY-LAWS OF KO TRANSMISSION COMPANY ARTICLE I OFFICES SECTION 1. OFFICES. THE REGISTERED OFFICE OF THE CORPORATION SHALL BE LOCATED IN THE CITY OF LOUISVILLE, JEFFERSON COUNTY, COMMONWEALTH OF KENTUCKY. THE CORPORATION MAY ESTABLISH BRANCH OFFICES AND CONDUCT AND CARRY ON BUSINESS AT SUCH OTHER PLACES WITHIN OR WITHOUT THE COMMONWEALTH OF KENTUCKY AS THE BOARD OF DIRECTORS MAY FROM TIME TO TIME FIX OR DESIGNATE, AND ANY BUSINESS CONDUCTED OR CARRIED ON AT SUCH OTHER PLACE OR PLACES SHALL BE AS BINDING AND EFFECTUAL AS IF TRANSACTED AT THE REGISTERED OFFICE OF THE CORPORATION. ARTICLE II SHAREHOLDERS' MEETINGS SECTION 1. ANNUAL MEETING. THE ANNUAL MEETING OF THE SHAREHOLDERS MAY BE HELD EITHER WITHIN OR WITHOUT THE COMMONWEALTH OF KENTUCKY, AT SUCH PLACE, TIME, AND DATE DESIGNATED BY THE BOARD OF DIRECTORS, FOR THE ELECTION OF DIRECTORS, THE CONSIDERATION OF THE REPORTS TO BE LAID BEFORE THE MEETING AND THE TRANSACTION OF SUCH OTHER BUSINESS AS MAY BE BROUGHT BEFORE THE MEETING. SECTION 2. NOTICE OF ANNUAL MEETING. NOTICE OF THE ANNUAL MEETING SHALL BE GIVEN IN WRITING TO EACH SHAREHOLDER ENTITLED TO VOTE THEREAT, AT SUCH ADDRESS AS APPEARS ON THE RECORDS OF THE CORPORATION AT LEAST TEN (10) DAYS, AND NOT MORE THAN FORTY (40) DAYS PRIOR TO THE MEETING. SECTION 3. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE SHAREHOLDERS MAY BE CALLED AT ANY TIME BY THE CHAIRMAN, VICE CHAIRMAN, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, OR BY A MAJORITY OF THE MEMBERS OF THE BOARD OF DIRECTORS ACTING WITH OR WITHOUT A MEETING OR BY THE PERSONS WHO HOLD IN THE AGGREGATE ONE-FIFTH OF ALL THE SHARES OUTSTANDING AND ENTITLED TO VOTE THEREAT, UPON NOTICE IN WRITING, STATING THE TIME, PLACE AND PURPOSE OF THE MEETING. BUSINESS TRANSACTED AT ALL SPECIAL MEETINGS SHALL BE CONFINED TO THE OBJECTS STATED IN THE CALL. SECTION 4. NOTICE OF SPECIAL MEETING. NOTICE OF A SPECIAL MEETING, IN WRITING, STATING THE TIME, PLACE AND PURPOSE THEREOF, SHALL BE GIVEN TO EACH SHAREHOLDER ENTITLED TO VOTE THEREAT, NOT LESS THAN TEN (10) NOR MORE THAN THIRTY-FIVE (35) DAYS AFTER THE RECEIPT OF SAID REQUEST. SECTION 5. WAIVER OF NOTICE. NOTICE OF ANY SHAREHOLDERS' MEETING MAY BE WAIVED IN WRITING BY ANY SHAREHOLDER AT ANY TIME BEFORE OR AFTER THE MEETING. SECTION 6. QUORUM. AT ANY MEETING OF THE SHAREHOLDERS, THE HOLDERS OF A MAJORITY OF THE SHARES OF STOCK OF THE CORPORATION, ISSUED AND OUTSTANDING, AND ENTITLED TO VOTE, PRESENT IN PERSON OR BY PROXY, SHALL CONSTITUTE A QUORUM FOR ALL PURPOSES, UNLESS OTHERWISE SPECIFIED BY LAW OR THE ARTICLES OF INCORPORATION. IF, HOWEVER, SUCH MAJORITY SHALL NOT BE PRESENT OR REPRESENTED AT ANY MEETING OF THE SHAREHOLDERS, THE SHAREHOLDERS ENTITLED TO VOTE, PRESENT IN PERSON OR BY PROXY, SHALL HAVE POWER TO ADJOURN THE MEETING FROM TIME TO TIME WITHOUT FURTHER NOTICE, OTHER THAN BY ANNOUNCEMENT AT THE MEETING, UNTIL THE REQUISITE AMOUNT OF VOTING STOCK SHALL BE PRESENT. AT ANY SUCH ADJOURNED MEETING, AT WHICH A QUORUM SHALL BE PRESENT, ANY BUSINESS MAY BE TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING AS ORIGINALLY CALLED. SECTION 7. VOTING. AT ANY MEETING OF THE SHAREHOLDERS, EVERY SHAREHOLDER HAVING THE RIGHT TO VOTE SHALL BE ENTITLED TO VOTE IN PERSON, OR BY PROXY APPOINTED BY AN INSTRUMENT IN WRITING SUBSCRIBED BY SUCH SHAREHOLDER AND BEARING A DATE NOT MORE THAN ELEVEN (11) MONTHS PRIOR TO SAID MEETING, UNLESS SOME OTHER DEFINITE PERIOD OF VALIDITY SHALL BE EXPRESSLY PROVIDED THEREIN. EACH SHAREHOLDER SHALL HAVE ONE (1) VOTE FOR EACH SHARE OF STOCK HAVING VOTING POWER, REGISTERED IN HIS OR HER NAME ON THE BOOKS OF THE CORPORATION, AT THE DATE FIXED FOR DETERMINATION OF PERSONS ENTITLED TO VOTE AT THE MEETING OR, IF NO DATE HAS BEEN FIXED, THEN AT THE DATE OF THE MEETING. CUMULATIVE VOTING SHALL BE PERMITTED ONLY AS EXPRESSLY REQUIRED BY STATUTE. A COMPLETE LIST OF SHAREHOLDERS ENTITLED TO VOTE AT THE SHAREHOLDERS' MEETINGS, ARRANGED IN ALPHABETICAL ORDER, WITH THE ADDRESS AND THE NUMBER OF VOTING SHARES HELD BY EACH, SHALL BE PRODUCED ON THE REQUEST OF ANY SHAREHOLDER, AND SUCH LIST SHALL BE PRIMA FACIE EVIDENCE OF THE OWNERSHIP OF SHARES AND OF THE RIGHT OF SHAREHOLDERS TO VOTE, WHEN CERTIFIED BY THE SECRETARY OR BY THE AGENT OF THE CORPORATION HAVING CHARGE OF THE TRANSFER OF SHARES. SECTION 8. WRITTEN CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. ANY ACTION REQUIRED OR PERMITTED BY STATUTE, THE ARTICLES OF INCORPORATION OF THE CORPORATION, OR THESE BY-LAWS, TO BE TAKEN AT ANY ANNUAL OR SPECIAL MEETING OF SHAREHOLDERS OF THE CORPORATION, MAY BE TAKEN WITHOUT A MEETING, WITHOUT PRIOR NOTICE, AND WITHOUT A VOTE, IF A WRITTEN CONSENT IN LIEU OF A MEETING, SETTING FORTH THE ACTIONS SO TAKEN, SHALL BE SIGNED BY ALL THE SHAREHOLDERS ENTITLED TO VOTE THEREON. ANY SUCH WRITTEN CONSENT MAY BE GIVEN BY ONE OR ANY NUMBER OF SUBSTANTIALLY CONCURRENT WRITTEN INSTRUMENTS OF SUBSTANTIALLY SIMILAR TENOR SIGNED BY SUCH SHAREHOLDERS, IN PERSON OR BY ATTORNEY OR PROXY DULY APPOINTED IN WRITING, AND FILED WITH THE RECORDS OF THE CORPORATION. ANY SUCH WRITTEN CONSENT SHALL BE EFFECTIVE AS OF THE EFFECTIVE DATE THEREOF AS SPECIFIED THEREIN. ARTICLE III BOARD OF DIRECTORS SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES. THE BUSINESS AND AFFAIRS OF THE CORPORATION SHALL BE MANAGED AND CONTROLLED BY A BOARD OF DIRECTORS (WHO NEED NOT BE SHAREHOLDERS) CONSISTING OF NOT LESS THAN THREE (3) PERSONS AND NOT MORE THAN SEVEN (7), THE EXACT NUMBER OF WHICH MAY BE FIXED OR CHANGED EITHER BY THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE SHARES REPRESENTED AND ENTITLED TO VOTE AT ANY MEETING OF THE SHAREHOLDERS CALLED FOR THE PURPOSE OF ELECTING DIRECTORS, OR BY THE AFFIRMATIVE VOTE OF THE MAJORITY OF THE DIRECTORS THEN IN OFFICE AT ANY STATED OR SPECIAL MEETING OF THE BOARD OF DIRECTORS; PROVIDED, HOWEVER, THAT THE BOARD MAY BE SUBJECT TO CERTAIN LIMITATIONS AS EXPRESSLY PROVIDED FOR UNDER AND PURSUANT TO KENTUCKY REVISED STATUTES I271B.8-030(2), OR SUCH SIMILAR SUCCESSOR GOVERNING STATUTE. THE BOARD OF DIRECTORS SHALL BE ELECTED ANNUALLY BY THE SHAREHOLDERS AT THE ANNUAL MEETING. EACH DIRECTOR SHALL HOLD OFFICE UNTIL HIS SUCCESSOR SHALL HAVE BEEN ELECTED AND QUALIFIED. ANY DIRECTOR MAY RESIGN AT ANY TIME. VACANCIES OCCURRING IN THE BOARD OF DIRECTORS SHALL BE FILLED BY A MAJORITY VOTE OF THE REMAINING MEMBERS OF THE BOARD. A DIRECTOR THUS ELECTED TO FILL ANY VACANCY SHALL HOLD OFFICE FOR THE UNEXPIRED TERM OF HIS PREDECESSOR AND UNTIL HIS SUCCESSOR IS ELECTED AND QUALIFIES. ANY DIRECTOR MAY BE REMOVED AT ANY TIME BY THE AFFIRMATIVE VOTE OF A MAJORITY OF THE STOCK THEN ISSUED AND ENTITLED TO VOTE AT A SPECIAL MEETING OF SHAREHOLDERS CALLED FOR THE PURPOSE. SECTION 2. ANNUAL ORGANIZATION MEETING. IMMEDIATELY AFTER EACH ANNUAL ELECTION, THE NEWLY-ELECTED DIRECTORS MAY MEET FORTHWITH (EITHER WITHIN OR WITHOUT THE COMMONWEALTH OF KENTUCKY) FOR THE PURPOSE OF ORGANIZATION, THE ELECTION OF OFFICERS AND THE TRANSACTION OF OTHER BUSINESS. IF A MAJORITY OF THE DIRECTORS BE THEN PRESENT NO PRIOR NOTICE OF SUCH MEETING SHALL BE REQUIRED TO BE GIVEN. THE PLACE AND TIME OF SUCH FIRST MEETING MAY, HOWEVER, BE FIXED BY WRITTEN CONSENT OF ALL THE DIRECTORS, OR BY THREE (3) DAYS WRITTEN NOTICE GIVEN BY THE SECRETARY OF THE CORPORATION. SECTION 3. REGULAR MEETINGS. REGULAR MEETINGS OF THE BOARD OF DIRECTORS MAY BE HELD AT SUCH TIME AND PLACE (EITHER WITHIN OR WITHOUT THE COMMONWEALTH OF KENTUCKY), AND UPON SUCH NOTICE, AS THE BOARD OF DIRECTORS MAY FROM TIME TO TIME DETERMINE. SECTION 4. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE BOARD OF DIRECTORS MAY BE CALLED BY THE CHAIRMAN, VICE CHAIRMAN, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, OR MAY BE CALLED BY THE WRITTEN REQUEST OF TWO (2) MEMBERS OF THE BOARD OF DIRECTORS. SECTION 5. NOTICE OF MEETINGS. NOTICE OF MEETINGS SHALL BE GIVEN TO EACH DIRECTOR IN ACCORDANCE WITH ARTICLE X, SECTION 1, OF THESE BY-LAWS. SECTION 6. QUORUM. A MAJORITY OF THE BOARD OF DIRECTORS SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION OF BUSINESS, BUT A MAJORITY OF THOSE PRESENT AT THE TIME AND PLACE OF ANY MEETING, ALTHOUGH LESS THAN A QUORUM, MAY ADJOURN THE SAME FROM TIME TO TIME, WITHOUT NOTICE, UNTIL A QUORUM BE HAD. THE ACT OF A MAJORITY OF THE DIRECTORS PRESENT AT ANY SUCH MEETING AT WHICH A QUORUM IS PRESENT SHALL BE THE ACT OF THE BOARD OF DIRECTORS. SECTION 7. COMPENSATION OF DIRECTORS. EACH DIRECTOR OF THE CORPORATION (OTHER THAN DIRECTORS WHO ARE SALARIED OFFICERS OF THE CORPORATION OR OF THE CINCINNATI GAS & ELECTRIC COMPANY OR ANY OF ITS AFFILIATES) SHALL BE ENTITLED TO RECEIVE AS COMPENSATION FOR SERVICES SUCH AMOUNTS AS MAY BE DETERMINED FROM TIME TO TIME BY THE BOARD OF DIRECTORS IN FORM EITHER IN FEES FOR ATTENDANCE AT THE MEETING OF THE BOARD OF DIRECTORS, OR BY PAYMENT AT THE RATE OF A FIXED SUM PER MONTH, OR BOTH. THE SAME PAYMENT MAY ALSO BE MADE TO ANY ONE OTHER THAN A DIRECTOR OFFICIALLY CALLED TO ATTEND ANY SUCH MEETING. SECTION 8. EXECUTIVE COMMITTEE. THE BOARD OF DIRECTORS MAY, BY RESOLUTION PASSED BY A MAJORITY OF THE WHOLE BOARD, DESIGNATE ANNUALLY THREE (3) OF THEIR NUMBER TO CONSTITUTE AN EXECUTIVE COMMITTEE, WHO TO THE EXTENT PROVIDED IN THE RESOLUTION, SHALL EXERCISE IN THE INTERVALS BETWEEN THE MEETINGS OF THE BOARD OF DIRECTORS THE POWERS OF THE BOARD IN THE MANAGEMENT OF THE BUSINESS AND AFFAIRS OF THE CORPORATION. THE EXECUTIVE COMMITTEE MAY ACT BY A MAJORITY OF ITS MEMBERS AT A MEETING OR BY A WRITING SIGNED BY ALL OF ITS MEMBERS. ALL ACTION BY THE EXECUTIVE COMMITTEE SHALL BE REPORTED TO THE BOARD OF DIRECTORS AT ITS MEETING NEXT SUCCEEDING SUCH ACTION. NON-EMPLOYEE MEMBERS OF SUCH EXECUTIVE COMMITTEE SHALL BE ENTITLED TO RECEIVE SUCH FEES AND COMPENSATION AS THE BOARD OF DIRECTORS MAY DETERMINE. SECTION 9. OTHER COMMITTEES. THE BOARD OF DIRECTORS MAY ALSO APPOINT SUCH OTHER STANDING OR TEMPORARY COMMITTEES FROM TIME TO TIME AS THEY MAY SEE FIT, DELEGATING TO SUCH COMMITTEES ALL OR ANY PART OF THEIR OWN POWERS. THE MEMBERS OF SUCH COMMITTEES SHALL BE ENTITLED TO RECEIVE SUCH FEES AS THE BOARD MAY DETERMINE. SECTION 10. ACTIONS OF BOARD. UNLESS OTHERWISE PROVIDED BY THE ARTICLES 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 OF THE CORPORATION, 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 SUCH 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 SPECIFIES A PRIOR OR SUBSEQUENT EFFECTIVE DATE. ARTICLE IV OFFICERS SECTION 1. OFFICERS. THE OFFICERS OF THE CORPORATION SHALL CONSIST OF A CHAIRMAN OF THE BOARD, A CHIEF EXECUTIVE OFFICER, A PRESIDENT, A SECRETARY, A TREASURER, A COMPTROLLER, AND MAY CONSIST OF A VICE CHAIRMAN, A CHIEF OPERATING OFFICER, ONE OR MORE VICE PRESIDENTS, ONE OR MORE ASSISTANT SECRETARIES, ONE OR MORE ASSISTANT TREASURERS, OR ONE OR MORE ASSISTANT COMPTROLLERS, ALL OF WHOM SHALL BE ELECTED BY THE BOARD OF DIRECTORS, AND SHALL HOLD OFFICE FOR ONE YEAR AND UNTIL THEIR SUCCESSORS ARE CHOSEN AND QUALIFIED. ANY TWO OR MORE OFFICES MAY BE HELD BY THE SAME PERSON, EXCEPT THAT THE DUTIES OF THE PRESIDENT AND SECRETARY SHALL NOT BE PERFORMED BY THE SAME PERSON. ALL VACANCIES OCCURRING AMONG ANY OF THE ABOVE OFFICES SHALL BE FILLED BY THE BOARD OF DIRECTORS. ANY OFFICER MAY BE REMOVED WITH OR WITHOUT CAUSE BY THE AFFIRMATIVE VOTE OF A MAJORITY OF THE NUMBER OF DIRECTORS AT ANY MEETING OF THE BOARD OF DIRECTORS. SECTION 2. SUBORDINATE OFFICERS. THE BOARD OF DIRECTORS MAY APPOINT SUCH OTHER OFFICERS AND AGENTS WITH SUCH POWERS AND DUTIES AS THEY SHALL DEEM NECESSARY. SECTION 3. THE CHAIRMAN OF THE BOARD. THE CHAIRMAN OF THE BOARD SHALL BE A DIRECTOR AND SHALL PRESIDE AT ALL MEETINGS OF THE BOARD OF DIRECTORS AND, IN THE ABSENCE OR INABILITY TO ACT OF THE CHIEF EXECUTIVE OFFICER, MEETINGS OF SHAREHOLDERS AND SHALL, SUBJECT TO THE BOARD'S DIRECTION AND CONTROL, BE THE BOARD'S REPRESENTATIVE AND MEDIUM OF COMMUNICATION, AND SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO THE CHAIRMAN OF THE BOARD BY THE BOARD OF DIRECTORS. THE CHAIRMAN OF THE BOARD SHALL DIRECT THE LONG-TERM STRATEGIC PLANNING PROCESS OF THE CORPORATION AND SHALL ALSO LEND HIS OR HER EXPERTISE TO SUCH OTHER OFFICERS AS MAY BE REQUESTED FROM TIME TO TIME BY SUCH OFFICERS. THE CHAIRMAN SHALL BE A MEMBER OF THE EXECUTIVE COMMITTEE. 2 SECTION 4. THE VICE CHAIRMAN. THE VICE CHAIRMAN OF THE BOARD, IF THERE BE ONE, SHALL BE A DIRECTOR AND SHALL PRESIDE AT MEETINGS OF THE BOARD OF DIRECTORS IN THE ABSENCE OR INABILITY TO ACT OF THE CHAIRMAN OF THE BOARD OR MEETINGS OF SHAREHOLDERS IN THE ABSENCE OR INABILITY TO ACT OF THE CHIEF EXECUTIVE OFFICER AND THE CHAIRMAN OF THE BOARD. THE VICE CHAIRMAN SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO HIM OR HER BY THE BOARD OF DIRECTORS. THE VICE CHAIRMAN SHALL BE A MEMBER OF THE EXECUTIVE COMMITTEE. SECTION 5. THE CHIEF EXECUTIVE OFFICER. THE CHIEF EXECUTIVE OFFICER SHALL BE A DIRECTOR AND SHALL PRESIDE AT ALL MEETINGS OF THE SHAREHOLDERS, AND, IN THE ABSENCE OR INABILITY TO ACT OF THE CHAIRMAN OF THE BOARD AND THE VICE CHAIRMAN, AT ALL MEETINGS OF THE BOARD OF DIRECTORS. THE CHIEF EXECUTIVE OFFICER SHALL 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. THE CHIEF EXECUTIVE OFFICER SHALL BE THE CHAIRMAN OF THE EXECUTIVE COMMITTEE AND EX OFFICIO A MEMBER OF ALL STANDING COMMITTEES. SECTION 6. THE CHIEF OPERATING OFFICER. THE CHIEF OPERATING OFFICER OF THE CORPORATION, IF THERE BE ONE, SHALL HAVE GENERAL AND ACTIVE MANAGEMENT AND DIRECTION OF THE AFFAIRS OF THE CORPORATION, SHALL HAVE SUPERVISION OF ALL DEPARTMENTS AND OF ALL OFFICERS OF THE CORPORATION, SHALL SEE THAT THE ORDERS AND RESOLUTIONS OF THE BOARD OF DIRECTORS AND OF THE EXECUTIVE COMMITTEE ARE CARRIED INTO EFFECT, AND SHALL HAVE THE GENERAL POWERS AND DUTIES OF SUPERVISION AND MANAGEMENT USUALLY VESTED IN THE OFFICE OF A CHIEF OPERATING OFFICER OF A CORPORATION. UNLESS OTHERWISE PROVIDED, ALL CORPORATE OFFICERS AND FUNCTIONS SHALL REPORT DIRECTLY TO THE CHIEF OPERATING OFFICER, IF THERE BE ONE, OR, IF NOT, TO THE CHIEF EXECUTIVE OFFICER. SECTION 7. THE PRESIDENT. THE PRESIDENT SHALL HAVE SUCH DUTIES AS MAY BE DELEGATED BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, OR CHIEF OPERATING OFFICER. SECTION 8. THE VICE PRESIDENTS. THE VICE PRESIDENTS SHALL PERFORM SUCH DUTIES AS THE BOARD OF DIRECTORS SHALL FROM TIME TO TIME REQUIRE. IN THE ABSENCE OR INCAPACITY OF THE PRESIDENT, THE VICE PRESIDENT DESIGNATED BY THE BOARD OF DIRECTORS OR EXECUTIVE COMMITTEE, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT SHALL EXERCISE THE POWERS AND DUTIES OF THE PRESIDENT. SECTION 9(A). THE SECRETARY. THE SECRETARY SHALL ATTEND ALL MEETINGS OF THE BOARD OF DIRECTORS, OF THE EXECUTIVE COMMITTEE AND OF THE SHAREHOLDERS AND ACT AS CLERK THEREOF AND RECORD ALL VOTES AND THE MINUTES OF ALL PROCEEDINGS IN A BOOK TO BE KEPT FOR THAT PURPOSE, AND SHALL PERFORM LIKE DUTIES FOR THE STANDING COMMITTEES WHEN REQUIRED. THE SECRETARY SHALL SEE THAT PROPER NOTICE IS GIVEN OF ALL MEETINGS OF THE SHAREHOLDERS OF THE CORPORATION AND OF THE BOARD OF DIRECTORS AND SHALL PERFORM SUCH OTHER DUTIES AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT. (B) ASSISTANT SECRETARIES. AT THE REQUEST OF THE SECRETARY, OR IN HIS OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT SECRETARY OR, IF THERE BE MORE THAN ONE, THE ASSISTANT SECRETARY DESIGNATED BY THE SECRETARY, SHALL PERFORM THE DUTIES OF THE SECRETARY AND WHEN SO ACTING SHALL HAVE ALL THE POWERS OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE SECRETARY. THE ASSISTANT SECRETARIES SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR SECRETARY. 3 SECTION 10(A). THE TREASURER. THE TREASURER SHALL BE THE FINANCIAL OFFICER OF THE CORPORATION, SHALL KEEP FULL AND ACCURATE ACCOUNTS OF ALL COLLECTIONS, RECEIPTS AND DISBURSEMENTS IN BOOKS BELONGING TO THE CORPORATION, SHALL DEPOSIT ALL MONEYS AND OTHER VALUABLES IN THE NAME AND TO THE CREDIT OF THE CORPORATION, IN SUCH DEPOSITORIES AS MAY BE DIRECTED BY THE BOARD OF DIRECTORS, SHALL DISBURSE THE FUNDS OF THE CORPORATION AS MAY BE ORDERED BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, TAKING PROPER VOUCHERS THEREFOR, AND SHALL RENDER TO THE CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, OR PRESIDENT, AND DIRECTORS AT ALL REGULAR MEETINGS OF THE BOARD, OR WHENEVER THEY MAY REQUIRE IT, AND TO THE ANNUAL MEETING OF THE SHAREHOLDERS, AN ACCOUNT OF ALL HIS OR HER TRANSACTIONS AS TREASURER AND OF THE FINANCIAL CONDITION OF THE CORPORATION. THE TREASURER SHALL ALSO PERFORM SUCH OTHER DUTIES AS THE BOARD OF DIRECTORS MAY FROM TIME TO TIME REQUIRE. IF REQUIRED BY THE BOARD OF DIRECTORS, THE TREASURER SHALL GIVE THE CORPORATION A BOND IN A FORM AND IN A SUM WITH SURETY SATISFACTORY TO THE BOARD OF DIRECTORS FOR THE FAITHFUL PERFORMANCE OF THE DUTIES OF HIS OR HER OFFICE AND THE RESTORATION TO THE CORPORATION IN THE CASE OF HIS OR HER DEATH, RESIGNATION OR REMOVAL FROM OFFICE OF ALL BOOKS, PAPERS, VOUCHERS, MONEY AND OTHER PROPERTY OF WHATEVER KIND IN HIS OR HER POSSESSION BELONGING TO THE CORPORATION. (B) ASSISTANT TREASURERS. AT THE REQUEST OF THE TREASURER, OR IN HIS OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT TREASURER OR, IF THERE BE MORE THAN ONE, THE ASSISTANT TREASURER DESIGNATED BY THE TREASURER, SHALL PERFORM THE DUTIES OF THE TREASURER AND WHEN SO ACTING SHALL HAVE ALL THE POWERS OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE TREASURER. THE ASSISTANT TREASURERS SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR TREASURER. SECTION 11(A). THE COMPTROLLER. THE COMPTROLLER SHALL HAVE CONTROL OVER ALL ACCOUNTS AND RECORDS OF THE CORPORATION PERTAINING TO MONEYS, PROPERTIES, MATERIALS AND SUPPLIES. HE OR SHE SHALL HAVE EXECUTIVE DIRECTION OVER THE BOOKKEEPING AND ACCOUNTING DEPARTMENTS AND SHALL HAVE GENERAL SUPERVISION OVER THE RECORDS IN ALL OTHER DEPARTMENTS PERTAINING TO MONEYS, PROPERTIES, MATERIALS AND SUPPLIES. HE OR SHE SHALL HAVE SUCH OTHER POWERS AND DUTIES AS ARE INCIDENT TO THE OFFICE OF COMPTROLLER OF A CORPORATION AND SHALL BE SUBJECT AT ALL TIMES TO THE DIRECTION AND CONTROL OF THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, AND A VICE PRESIDENT. (B) ASSISTANT COMPTROLLERS. AT THE REQUEST OF THE COMPTROLLER, OR IN HIS OR HER ABSENCE OR INABILITY TO ACT, THE ASSISTANT COMPTROLLER OR, IF THERE BE MORE THAN ONE, THE ASSISTANT COMPTROLLER DESIGNATED BY THE COMPTROLLER, SHALL PERFORM THE DUTIES OF THE COMPTROLLER AND WHEN SO ACTING SHALL HAVE ALL THE POWER OF AND BE SUBJECT TO ALL THE RESTRICTIONS OF THE COMPTROLLER. THE ASSISTANT COMPTROLLERS SHALL PERFORM SUCH OTHER DUTIES AS MAY FROM TIME TO TIME BE ASSIGNED TO THEM BY THE BOARD OF DIRECTORS, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR COMPTROLLER. 4 ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SECTION 1. DEFINITIONS. AS USED IN THIS ARTICLE: A. "CORPORATION" INCLUDES ANY DOMESTIC OR FOREIGN PREDECESSOR ENTITY OF THE CORPORATION IN A MERGER OR OTHER TRANSACTION IN WHICH THE PREDECESSOR'S EXISTENCE CEASED UPON CONSUMMATION OF THE TRANSACTION. B. "DIRECTOR" MEANS AN INDIVIDUAL WHO IS OR WAS A DIRECTOR OF THE CORPORATION OR AN INDIVIDUAL WHO, WHILE A DIRECTOR OF THE CORPORATION, IS OR WAS SERVING AT THE CORPORATION'S REQUEST AS A DIRECTOR, OFFICER, PARTNER, TRUSTEE, EMPLOYEE, OR AGENT OF ANOTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN, OR OTHER ENTERPRISE. A DIRECTOR SHALL BE CONSIDERED TO BE SERVING AN EMPLOYEE BENEFIT PLAN AT THE CORPORATION'S REQUEST IF HIS OR HER DUTIES TO THE CORPORATION ALSO IMPOSE DUTIES ON, OR OTHERWISE INVOLVE SERVICES BY, HIM OR HER TO THE PLAN OR TO PARTICIPANTS IN OR BENEFICIARIES OF THE PLAN. "DIRECTOR" INCLUDES, UNLESS THE CONTEXT REQUIRES OTHERWISE, THE ESTATE OR PERSONAL REPRESENTATIVE OF A DIRECTOR. C. "EXPENSES" INCLUDE COUNSEL FEES. D. "LIABILITY" MEANS THE OBLIGATION TO PAY A JUDGMENT, SETTLEMENT, PENALTY, FINE (INCLUDING AN EXCISE TAX ASSESSED WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN), OR REASONABLE EXPENSES INCURRED WITH RESPECT TO A PROCEEDING. E. "OFFICIAL CAPACITY" MEANS: (1) WHEN USED WITH RESPECT TO A DIRECTOR, THE OFFICE OF DIRECTOR IN THE CORPORATION; AND (2) WHEN USED WITH RESPECT TO AN INDIVIDUAL OTHER THAN A DIRECTOR, AS CONTEMPLATED IN SECTION 6, THE OFFICE IN THE CORPORATION HELD BY THE OFFICER OR THE EMPLOYMENT OR AGENCY RELATIONSHIP UNDERTAKEN BY THE EMPLOYEE OR AGENT ON BEHALF OF THE CORPORATION. "OFFICIAL CAPACITY" SHALL NOT INCLUDE SERVICE FOR ANY OTHER FOREIGN OR DOMESTIC CORPORATION OR ANY PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN, OR OTHER ENTERPRISE. F. "PARTY" INCLUDES AN INDIVIDUAL WHO WAS, IS, OR IS THREATENED TO BE MADE A NAMED DEFENDANT OR RESPONDENT IN A PROCEEDING. G. "PROCEEDING" MEANS ANY THREATENED, PENDING, OR COMPLETED ACTION, SUIT, OR PROCEEDING, WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE, OR INVESTIGATIVE AND WHETHER FORMAL OR INFORMAL. SECTION 2. INDEMNIFICATION. A. EXCEPT AS PROVIDED IN SUBSECTION (D) OF THIS SECTION, THE CORPORATION SHALL INDEMNIFY AN INDIVIDUAL MADE A PARTY TO A PROCEEDING BECAUSE HE OR SHE IS OR WAS A DIRECTOR AGAINST LIABILITY INCURRED IN THE PROCEEDING IF: (1) HE OR SHE CONDUCTED HIMSELF OR HERSELF IN GOOD FAITH; AND (2) HE OR SHE REASONABLY BELIEVED: (a) IN THE CASE OF CONDUCT IN HIS OR HER OFFICIAL CAPACITY WITH THE CORPORATION, THAT HIS OR HER CONDUCT WAS IN ITS BEST INTEREST; AND (b) IN ALL OTHER CASES, THAT HIS OR HER CONDUCT WAS AT LEAST NOT OPPOSED TO ITS BEST INTERESTS; AND (3) IN THE CASE OF ANY CRIMINAL PROCEEDING, HE OR SHE HAD NO REASONABLE CAUSE TO BELIEVE HIS OR HER CONDUCT WAS UNLAWFUL. B. A DIRECTOR'S CONDUCT WITH RESPECT TO AN EMPLOYEE BENEFIT PLAN FOR A PURPOSE HE OR SHE REASONABLY BELIEVED TO BE IN THE INTERESTS OF THE PARTICIPANTS IN AND BENEFICIARIES OF THE PLAN SHALL BE CONDUCT THAT SATISFIES THE REQUIREMENT OF SUBSECTION A(2)(B) OF THIS SECTION. C. THE TERMINATION OF A PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT, CONVICTION, OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT SHALL NOT BE, OF ITSELF, DETERMINATIVE THAT THE DIRECTOR DID NOT MEET THE STANDARD OF CONDUCT DESCRIBED IN THIS SECTION. D. THE CORPORATION MAY NOT INDEMNIFY A DIRECTOR UNDER THIS SECTION: (1) IN CONNECTION WITH A PROCEEDING BY OR IN THE RIGHT OF THE CORPORATION IN WHICH THE DIRECTOR WAS ADJUDGED LIABLE TO THE CORPORATION; OR (2) IN CONNECTION WITH ANY OTHER PROCEEDING CHARGING IMPROPER PERSONAL BENEFIT TO HIM OR HER, WHETHER OR NOT INVOLVING ACTION IN HIS OR HER OFFICIAL CAPACITY, IN WHICH HE OR SHE WAS ADJUDGED LIABLE ON THE BASIS THAT PERSONAL BENEFIT WAS IMPROPERLY RECEIVED BY HIM OR HER. E. INDEMNIFICATION PERMITTED UNDER THIS SECTION IN CONNECTION WITH A PROCEEDING BY OR IN THE RIGHT OF THE CORPORATION SHALL BE LIMITED TO REASONABLE EXPENSES INCURRED IN CONNECTION WITH THE PROCEEDING. SECTION 3. MANDATORY INDEMNIFICATION. UNLESS LIMITED BY THE ARTICLES OF INCORPORATION, THE CORPORATION SHALL INDEMNIFY A DIRECTOR WHO WAS WHOLLY SUCCESSFUL, ON THE MERITS OR OTHERWISE, IN THE DEFENSE OF ANY PROCEEDING TO WHICH HE OR SHE WAS A PARTY BECAUSE HE OR SHE IS OR WAS A DIRECTOR OF THE CORPORATION AGAINST REASONABLE EXPENSES INCURRED BY HIM OR HER IN CONNECTION WITH THE PROCEEDING. SECTION 4. ADVANCE FOR EXPENSES. A. THE CORPORATION MAY PAY FOR OR REIMBURSE THE REASONABLE EXPENSES INCURRED BY A DIRECTOR WHO IS A PARTY TO A PROCEEDING IN ADVANCE OF FINAL DISPOSITION OF THE PROCEEDING IF: (1) THE DIRECTOR FURNISHES THE CORPORATION A WRITTEN AFFIRMATION OF HIS OR HER GOOD FAITH BELIEF THAT HE OR SHE HAS MET THE STANDARD OF CONDUCT DESCRIBED IN SECTION 2; (2) THE DIRECTOR FURNISHES THE CORPORATION A WRITTEN UNDERTAKING, EXECUTED PERSONALLY OR ON HIS OR HER BEHALF, TO REPAY THE ADVANCE IF IT IS ULTIMATELY DETERMINED THAT HE OR SHE DID NOT MEET THE STANDARD OF CONDUCT; AND (3) A DETERMINATION IS MADE THAT THE FACTS THEN KNOWN TO THOSE MAKING THE DETERMINATION WOULD NOT PRECLUDE INDEMNIFICATION UNDER THIS ARTICLE. B. THE UNDERTAKING REQUIRED BY SUBSECTION A(2) OF THIS SECTION SHALL BE AN UNLIMITED GENERAL OBLIGATION OF THE DIRECTOR BUT SHALL NOT BE REQUIRED TO BE SECURED AND MAY BE ACCEPTED WITHOUT REFERENCE TO FINANCIAL ABILITY TO MAKE REPAYMENT. C. DETERMINATIONS AND AUTHORIZATIONS OF PAYMENTS UNDER THIS SECTION SHALL BE MADE IN THE MANNER SPECIFIED IN SECTION 5. SECTION 5. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION. A. THE CORPORATION SHALL NOT INDEMNIFY A DIRECTOR UNDER SECTION 2 OF THIS ARTICLE UNLESS AUTHORIZED IN THE SPECIFIC CASE AFTER A DETERMINATION HAS BEEN MADE THAT INDEMNIFICATION OF THE DIRECTOR IS PERMISSIBLE IN THE CIRCUMSTANCES BECAUSE HE OR SHE HAS MET THE STANDARD OF CONDUCT SET FORTH IN SECTION 2. B. THE DETERMINATION SHALL BE MADE: (1) BY THE BOARD OF DIRECTORS BY MAJORITY VOTE OF A QUORUM CONSISTING OF DIRECTORS NOT AT THE TIME PARTIES TO THE PROCEEDING; (2) IF A QUORUM CANNOT BE OBTAINED UNDER SUBSECTION B(1) OF THIS SECTION, BY MAJORITY VOTE OF A COMMITTEE DULY DESIGNATED BY THE BOARD OF DIRECTORS (IN WHICH DESIGNATION DIRECTORS WHO ARE PARTIES MAY PARTICIPATE), CONSISTING SOLELY OF TWO OR MORE DIRECTORS NOT AT THE TIME PARTIES TO THE PROCEEDING; (3) BY SPECIAL LEGAL COUNSEL: (a) SELECTED BY THE BOARD OF DIRECTORS OR ITS COMMITTEE IN THE MANNER PRESCRIBED IN SUBSECTION B(1) AND (2) OF THIS SECTION; OR (b) IF A QUORUM OF THE BOARD OF DIRECTORS CANNOT BE OBTAINED UNDER SUBSECTION B(1) OF THIS SECTION AND A COMMITTEE CANNOT BE DESIGNATED UNDER SUBSECTION B(2) OF THIS SECTION, SELECTED BY MAJORITY VOTE OF THE FULL BOARD OF DIRECTORS (IN WHICH SELECTION DIRECTORS WHO ARE PARTIES MAY PARTICIPATE); OR (4) BY THE SHAREHOLDERS, BUT SHARES OWNED BY OR VOTED UNDER THE CONTROL OF DIRECTORS WHO ARE AT THE TIME PARTIES TO THE PROCEEDING SHALL NOT BE VOTED ON THE DETERMINATION. C. AUTHORIZATION OF INDEMNIFICATION AND EVALUATION AS TO REASONABLENESS OF EXPENSES SHALL BE MADE IN THE SAME MANNER AS THE DETERMINATION THAT INDEMNIFICATION IS PERMISSIBLE, EXCEPT THAT IF THE DETERMINATION IS MADE BY SPECIAL LEGAL COUNSEL, AUTHORIZATION OF INDEMNIFICATION AND EVALUATION AS TO REASONABLENESS OF EXPENSES SHALL BE MADE BY THOSE ENTITLED UNDER SUBSECTION B(3) OF THIS SECTION TO SELECT COUNSEL. 5 SECTION 6. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS. UNLESS THE CORPORATION'S ARTICLES OF INCORPORATION PROVIDE OTHERWISE: A. AN OFFICER OF THE CORPORATION WHO IS NOT A DIRECTOR SHALL BE ENTITLED TO MANDATORY INDEMNIFICATION UNDER SECTION 3, AND IS ENTITLED TO APPLY FOR COURT-ORDERED INDEMNIFICATION UNDER THE KENTUCKY BUSINESS CORPORATION ACT, IN EACH CASE TO THE SAME EXTENT AS A DIRECTOR; B. THE CORPORATION MAY INDEMNIFY AND ADVANCE EXPENSES UNDER THIS ARTICLE TO AN OFFICER, EMPLOYEE, OR AGENT OF THE CORPORATION WHO IS NOT A DIRECTOR TO THE SAME EXTENT AS TO A DIRECTOR; AND C. THE CORPORATION MAY ALSO INDEMNIFY AND ADVANCE EXPENSES TO AN OFFICER, EMPLOYEE, OR AGENT WHO IS NOT A DIRECTOR TO THE EXTENT, CONSISTENT WITH PUBLIC POLICY, THAT MAY BE PROVIDED BY THE ARTICLES OF INCORPORATION, BY-LAWS, GENERAL OR SPECIFIC ACTION OF THE BOARD OF DIRECTORS, OR CONTRACT. SECTION 7. INSURANCE. THE CORPORATION MAY PURCHASE AND MAINTAIN INSURANCE ON BEHALF OF AN INDIVIDUAL WHO IS OR WAS A DIRECTOR, OFFICER, EMPLOYEE, OR AGENT OF THE CORPORATION, OR WHO, WHILE A DIRECTOR, OFFICER, EMPLOYEE, OR AGENT OF THE CORPORATION, IS OR WAS SERVING AT THE REQUEST OF THE CORPORATION AS A DIRECTOR, OFFICER, PARTNER, TRUSTEE, EMPLOYEE, OR AGENT OF ANOTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, EMPLOYEE BENEFIT PLAN, OR OTHER ENTERPRISE, AGAINST LIABILITY ASSERTED AGAINST OR INCURRED BY HIM OR HER IN THAT CAPACITY OR ARISING FROM HIS OR HER STATUS AS A DIRECTOR, OFFICER, EMPLOYEE, OR AGENT, WHETHER OR NOT THE CORPORATION WOULD HAVE POWER TO INDEMNIFY HIM OR HER AGAINST THE SAME LIABILITY UNDER SECTION 2 OR SECTION 3. SECTION 8. APPLICATION OF THIS ARTICLE. A. THE INDEMNIFICATION AND ADVANCEMENT OF EXPENSES PROVIDED BY, OR GRANTED PURSUANT TO, THIS ARTICLE SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH THOSE SEEKING INDEMNIFICATION OR ADVANCEMENT OF EXPENSES MAY BE ENTITLED UNDER THE BY-LAWS, ANY AGREEMENT, VOTE OF SHAREHOLDERS OR DISINTERESTED DIRECTORS, OR OTHERWISE, BOTH AS TO ACTION IN HIS OR HER OFFICIAL CAPACITY AND AS TO ACTION IN ANOTHER CAPACITY WHILE HOLDING SUCH OFFICE. B. THIS ARTICLE SHALL NOT LIMIT THE CORPORATION'S POWER TO PAY OR REIMBURSE EXPENSES INCURRED BY A DIRECTOR IN CONNECTION WITH HIS OR HER APPEARANCE AS A WITNESS AT A PROCEEDING AT A TIME WHEN HE OR SHE HAS NOT BEEN MADE A NAMED DEFENDANT OR RESPONDENT TO THE PROCEEDING. ARTICLE VI CAPITAL STOCK SECTION 1. FORM AND EXECUTION OF CERTIFICATES. THE CERTIFICATES FOR SHARES OF THE CAPITAL STOCK OF THE CORPORATION SHALL BE OF SUCH FORM AND CONTENT, NOT INCONSISTENT WITH THE LAW AND THE ARTICLES OF INCORPORATION, AS SHALL BE APPROVED BY THE BOARD OF DIRECTORS. THE CERTIFICATES SHALL BE SIGNED BY (1) EITHER THE CHAIRMAN, CHIEF EXECUTIVE OFFICER, PRESIDENT, OR A VICE PRESIDENT, AND (2) ANY ONE OF THE FOLLOWING OFFICERS: SECRETARY OR ASSISTANT SECRETARY, TREASURER OR ASSISTANT TREASURER. ALL CERTIFICATES SHALL BE CONSECUTIVELY NUMBERED IN EACH CLASS OF SHARES. THE NAME AND ADDRESS OF THE PERSON OWNING THE SHARES REPRESENTED THEREBY, WITH THE NUMBER OF SHARES AND THE DATE OF ISSUE, SHALL BE ENTERED ON THE CORPORATION'S BOOKS. SECTION 2. TRANSFER OF SHARES. TRANSFER OF SHARES SHALL BE MADE UPON THE BOOKS OF THE CORPORATION OR RESPECTIVE TRANSFER AGENTS DESIGNATED TO TRANSFER EACH CLASS OF STOCK, AND BEFORE A NEW CERTIFICATE IS ISSUED THE OLD CERTIFICATES SHALL BE SURRENDERED FOR CANCELLATION. SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS. THE BOARD OF DIRECTORS MAY APPOINT ONE OR MORE TRANSFER AGENTS OR ONE OR MORE REGISTRARS OR BOTH, AND MAY REQUIRE ALL STOCK CERTIFICATES TO BEAR THE SIGNATURE OF EITHER OR BOTH. WHEN ANY SUCH CERTIFICATE IS SIGNED, BY A TRANSFER AGENT OR REGISTRAR, THE SIGNATURES OF THE CORPORATE OFFICERS AND THE CORPORATE SEAL, IF ANY, UPON SUCH CERTIFICATE MAY BE FACSIMILES, ENGRAVED OR PRINTED. IN CASE ANY OFFICER DESIGNATED FOR THE PURPOSE, WHO HAS SIGNED OR WHOSE FACSIMILE SIGNATURE HAS BEEN USED ON ANY SUCH CERTIFICATE, SHALL, FROM ANY CAUSE, CEASE TO BE SUCH OFFICER BEFORE THE CERTIFICATE HAS BEEN DELIVERED BY THE CORPORATION, THE CERTIFICATE MAY NEVERTHELESS BE ADOPTED BY THE CORPORATION AND BE ISSUED AND DELIVERED AS THOUGH THE PERSON HAD NOT CEASED TO BE SUCH OFFICER. SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF SHAREHOLDERS. THE BOARD OF DIRECTORS MAY FIX A TIME NOT EXCEEDING FORTY (40) DAYS PRECEDING THE DATE OF ANY MEETING OF SHAREHOLDERS OR ANY DIVIDEND PAYMENT DATE OR ANY DATE FOR THE ALLOTMENT OF RIGHTS AS A RECORD DATE FOR THE DETERMINATION OF THE SHAREHOLDERS ENTITLED TO NOTICE OF SUCH MEETING OR TO VOTE THEREAT OR TO RECEIVE SUCH DIVIDENDS OR RIGHTS AS THE CASE MAY BE; OR THE BOARD OF DIRECTORS MAY CLOSE THE BOOKS OF THE CORPORATION AGAINST TRANSFER OF SHARES DURING THE WHOLE OR ANY PART OF SUCH PERIOD. SECTION 5. LOST STOCK CERTIFICATES. IN THE CASE OF A LOST STOCK CERTIFICATE, A NEW STOCK CERTIFICATE MAY BE ISSUED IN ITS PLACE UPON PROOF OF SUCH LOSS, DESTRUCTION OR MUTILATION AND UPON THE GIVING OF A SATISFACTORY BOND OF INDEMNITY TO THE CORPORATION AND/OR TO THE TRANSFER AGENT AND REGISTRAR OF SUCH STOCK, IF ANY, IN SUCH SUM AND UNDER SUCH TERMS AS THE BOARD OF DIRECTORS MAY PROVIDE. ARTICLE VII DIVIDENDS SECTION 1. DIVIDENDS. DIVIDENDS MAY BE DECLARED BY THE BOARD OF DIRECTORS (OR THE EXECUTIVE COMMITTEE, IF THERE BE ONE AND THE AUTHORITY TO DECLARE DIVIDENDS IS DELEGATED TO THE EXECUTIVE COMMITTEE BY THE BOARD OF DIRECTORS) AND PAID IN CASH, SHARES, OR OTHER PROPERTY OUT OF THE ANNUAL NET INCOME TO THE CORPORATION OR OUT OF ITS NET ASSETS IN EXCESS OF ITS CAPITAL, COMPUTED IN ACCORDANCE WITH THE STATE STATUTE AND SUBJECT TO THE CONDITIONS AND LIMITATIONS IMPOSED BY THE ARTICLES OF INCORPORATION. NO DIVIDENDS SHALL BE PAID TO THE HOLDERS OF ANY CLASS OF SHARES IN VIOLATION OF THE RIGHTS OF THE HOLDERS OF ANY OTHER CLASS OF SHARES. BEFORE PAYMENT OF ANY DIVIDENDS OR MAKING DISTRIBUTION OF ANY PROFITS, THERE MAY BE SET APART OUT OF THE EXCESS OF ASSETS AVAILABLE FOR DIVIDENDS SUCH SUM OR SUMS AS THE BOARD OF DIRECTORS (OR EXECUTIVE COMMITTEE, IF THERE BE ONE AND THE AUTHORITY TO DECLARE DIVIDENDS OR MAKE DISTRIBUTIONS IS DELEGATED TO THE EXECUTIVE COMMITTEE) FROM TIME TO TIME IN ITS ABSOLUTE DISCRETION THINKS PROPER AS A RESERVE FUND FOR ANY PURPOSE. 6 ARTICLE VIII FISCAL YEAR SECTION 1. FISCAL YEAR. THE FISCAL YEAR OF THE CORPORATION SHALL BEGIN ON THE FIRST DAY OF JANUARY AND TERMINATE ON THE THIRTY-FIRST DAY OF DECEMBER IN EACH YEAR. ARTICLE IX CONTRACTS, CHECKS, NOTES, ETC. SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. ALL CONTRACTS AND AGREEMENTS AUTHORIZED BY THE BOARD OF DIRECTORS AND ALL BONDS AND NOTES SHALL, UNLESS OTHERWISE DIRECTED BY THE BOARD OF DIRECTORS OR UNLESS OTHERWISE REQUIRED BY LAW, BE SIGNED BY (1) EITHER THE CHAIRMAN, VICE CHAIRMAN, CHIEF EXECUTIVE OFFICER, CHIEF OPERATING OFFICER, PRESIDENT, OR A VICE PRESIDENT, AND (2) ANY ONE OF THE FOLLOWING OFFICERS: SECRETARY OR ASSISTANT SECRETARY, TREASURER OR ASSISTANT TREASURER. THE BOARD OF DIRECTORS MAY BY RESOLUTION ADOPTED AT ANY MEETING DESIGNATE OFFICERS OF THE CORPORATION WHO MAY IN THE NAME OF THE CORPORATION EXECUTE CHECKS, DRAFTS AND ORDERS FOR THE PAYMENT OF MONEY IN ITS BEHALF AND, IN THE DISCRETION OF THE BOARD OF DIRECTORS, SUCH OFFICERS MAY BE SO AUTHORIZED TO SIGN SUCH CHECKS SINGLY WITHOUT NECESSITY FOR COUNTER-SIGNATURE. ARTICLE X NOTICE AND WAIVER OF NOTICE SECTION 1. NOTICE AND WAIVER OF NOTICE. ANY NOTICE REQUIRED TO BE GIVEN BY THESE BY-LAWS TO A DIRECTOR OR OFFICER MAY BE GIVEN IN WRITING, PERSONALLY SERVED OR THROUGH THE UNITED STATES MAIL, OR BY TELEPHONE, TELECOPY, TELEGRAM, CABLEGRAM OR RADIOGRAM, AND SUCH NOTICE SHALL BE DEEMED TO BE GIVEN AT THE TIME WHEN THE SAME SHALL BE THUS TRANSMITTED. ANY NOTICE REQUIRED TO BE GIVEN BY THESE BY-LAWS MAY BE WAIVED BY THE PERSON ENTITLED TO SUCH NOTICE. ARTICLE XI AMENDMENT SECTION 1. AMENDMENT. THESE BY-LAWS MAY BE AMENDED OR REPEALED AT ANY MEETING OF THE SHAREHOLDERS OF THE CORPORATION BY THE AFFIRMATIVE VOTE OF THE HOLDERS OF RECORD OF SHARES ENTITLING THEM TO EXERCISE A MAJORITY OF THE VOTING POWER ON SUCH PROPOSAL, OR, WITHOUT A MEETING, BY THE WRITTEN CONSENT OF THE HOLDERS OF RECORD OF SHARES ENTITLING THEM TO EXERCISE A TWO-THIRDS MAJORITY OF THE VOTING POWER ON SUCH PROPOSAL. EX-99 8 0008.txt CERTIFICATE OF FORMATION CINCAP MVC OPCO CERTIFICATE OF FORMATION OF CinCap MVC OpCo, 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 MVC OpCo, 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 28th day of September, 1999. /S/ RICHARD G. BEACH -------------------- Richard G. Beach Sole Organizer #49698 EX-99 9 0009.txt AMENDED AGREEMENT OF CINCAP VII SECOND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CINCAP VII, LLC This SECOND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"), effective as of September 30, 1999 (the "Effective Date"), of CinCap VII, LLC, a Delaware limited liability company (the "Company"), by CinCap VIII, LLC, a Delaware limited liability company ("CinCap VIII"), and VMC Generating Company, a Texas general partnership ("VMC"). This Agreement amends and restates that certain Restated Limited Liability Company Agreement, effective as of September 29, 1999, of the Company (the "Original Restated Agreement"). RECITALS WHEREAS, the Company was formed on December 2, 1998 by the sole organizer under the Delaware Limited Liability Company Act (as amended from time to time, the "Act"); WHEREAS, under that certain Limited Liability Company Agreement of the Company dated as of December 2, 1998, Cinergy Capital & Trading, Inc. ("CC&T") was the sole member of the Company, holding 100% of the membership interests thereof; WHEREAS, pursuant to the Original Restated Agreement, CC&T assigned and transferred all of its membership interest in the Company to CinCap VIII (in such capacity, the "Current Member"); WHEREAS, CinCap VIII now desires to assign and transfer, and VMC (in such capacity, the "Transferee Member") desires to accept, all of CinCap VIII's membership interest in the Company; WHEREAS, CinCap VIII and VMC desire to amend and restate the Original Restated Agreement to evidence such transfer and assignment and otherwise to set forth VMC's agreement, as sole member in the Company immediately following such transfer, with respect to, among other things, its rights, obligations and interests regarding the affairs of the Company and the conduct of its business; NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 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 "CinCap VII, 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 139 East Fourth Street, Cincinnati, Ohio, 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 ASSIGNMENT TO VMC; ADDITIONAL MEMBER(S) SECTION 3.1 ASSIGNMENT TO VMC; ADDITIONAL MEMBER(S). On the Effective Date, CinCap VIII hereby assigns and transfers to VMC, and VMC hereby accepts from CinCap VIII, 100% of CinCap VIII's membership interest in the Company. Additional member(s) of the Company, if any, shall be admitted only with the approval of VMC. 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 GENERAL. Except as specifically set forth herein, the business and affairs of the Company shall be managed by and under the direction of the member(s) who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, to make all decisions affecting the business and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Company as set forth herein. The member(s) shall serve without compensation from the Company, and the member(s) shall bear the cost of its participation in meetings and other activities of the Company. SECTION 4.2 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 (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 4.3 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 4.4 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 with the consent of the existing member(s). 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 AMENDMENTS TO THIS AGREEMENT. Following the execution and delivery of this Agreement by the parties hereto, this Agreement may be amended by, and only by, a written instrument executed by the Transferee Member. 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(s) 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(s) shall promptly prepare any documents required to be filed and recorded under the Act, and the member(s) 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(s) 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(s) 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 have duly executed this Agreement as of the date first above written. CinCap VIII, LLC, as Current Member By: __________________ William L. Sheafer Treasurer VMC Generating Company, as Transferee Member By: ____________________ Name: Title: EX-99 10 0010.txt CERTIFICATE OF FORMATION DUKE ENERGY MADISON CERTIFICATE OF FORMATION OF DUKE ENERGY MADISON, LLC FIRST: THE NAME OF THE LIMITED LIABILITY COMPANY IS DUKE ENERGY MADISON, LLC. SECOND: THE ADDRESS OF ITS REGISTERED OFFICE IN THE STATE OF DELAWARE IS CORPORATION TRUST CENTER, 1209 ORANGE STREET IN THE CITY OF WILMINGTON, COUNTY OF NEW CASTLE. THE NAME OF ITS REGISTERED AGENT AT SUCH ADDRESS IS THE CORPORATION TRUST COMPANY. IN WITNESS WHEREOF, THE UNDERSIGNED HAS EXECUTED THIS CERTIFICATE OF FORMATION OF DUKE ENERGY MADISON, LLC THIS THE 2ND DAY OF DECEMBER, 1998. /S/ROBERT T. LUCAS ------------------ Robert T. Lucas, Authorized Person 58719 EX-99 11 0011.txt CERTIFICATE OF FORMATION OF DUKE ENERGY VERMILLION CERTIFICATE OF FORMATION OF DUKE ENERGY VERMILLION, LLC FIRST: THE NAME OF THE LIMITED LIABILITY COMPANY IS DUKE ENERGY VERMILLION, LLC. SECOND: THE ADDRESS OF ITS REGISTERED OFFICE IN THE STATE OF DELAWARE IS CORPORATION TRUST CENTER, 1209 ORANGE STREET IN THE CITY OF WILMINGTON, COUNTY OF NEW CASTLE. THE NAME OF ITS REGISTERED AGENT AT SUCH ADDRESS IS THE CORPORATION TRUST COMPANY. IN WITNESS WHEREOF, THE UNDERSIGNED HAS EXECUTED THIS CERTIFICATE OF FORMATION OF DUKE ENERGY VERMILLION, LLC THIS THE 15TH DAY OF DECEMBER, 1998. /S/STEPHEN R. HUNTING --------------------- Stephen R. Hunting, Authorized Person 58717 EX-99 12 0012.txt AMENDED AGREEMENT OF CINPOWER 1 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CINPOWER I, LLC AMENDED and RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of September 9, 1999 ("this Agreement"), of CinPower I, LLC, a Delaware limited liability company (the "Company"), by Cinergy Capital & Trading, Inc., an Indiana corporation, as the sole member of the Company (the "Member"); RECITALS A. The Company was formed on June 12, 1998 by the Sole Organizer under the Delaware Limited Liability Company Act (as amended from time to time, the "Act"). B. The Member, holding 100% of the membership interest in the Company, approved and adopted the Limited Liability Company Agreement of the Company dated as of June 12, 1998. C. The Member now desires to amend and restate said Limited Liability Company Agreement, in accordance with Section 11.1 thereof, as to the affairs of the Company and the conduct of its business by the approval and adoption of this Amended and Restated Limited Liability Company Agreement of the Company, authorized by written consent of the Member effective as of September 9, 1999. 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 "CinPower I, 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, New Castle County, Delaware. (b) The business address of the Company is 11 Louisiana Street, Suite 4950, Houston, TX 77002, 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 MEMBERS. New members shall be admitted only with the approval of all members. 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 members be admitted, Common Interests of each member shall reflect its capital account relative to the other members. 2 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 members 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 members 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 members. (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 MEMBERS. 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 GENERAL. 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) who shall have full, exclusive and complete discretion to manage and control the business and affairs of the Company as would (if the Company were a corporation) be subject to control by a board of directors, to make all decisions affecting the business and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Company as set forth herein. The Member(s) shall serve without compensation from the Company, and the Member(s) shall bear the cost of its participation in meetings and other activities of the Company. ------- SECTION 4.2 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 4.2, 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 4.3 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 4.4 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 members 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. 3 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 members 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 members. 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 members' 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 members are admitted, the members 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 members are admitted, the members 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 members are admitted, the members (acting by written consent of all members) 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 members 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 members are admitted, the members shall cause to be prepared and timely filed all tax returns required to be filed for the Company. The Member or the members (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 members 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 members are admitted, unanimous consent of the members. --------------------------- 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 members are admitted, the members 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 members are admitted, the members shall keep or cause to be kept at the address of the Company (or at such other place as the members 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/ MICHAEL J. CYRUS ----------------------------- Michael J. Cyrus President EX-99 13 0013.txt CINERGY MARKETING AND TRADING CERTIFICATE CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF PRODUCERS ENERGY MARKETING, LLC 1. The name of the limited liability company is Producers Energy Marketing, LLC. 2. The Certificate of Formation of the limited liability company is hereby amended by changing paragraph FIRST thereof so that, as amended, paragraph FIRST shall be and read as follows: FIRST. The name of the limited liability company formed hereby (herein referred to as the "Company") is Cinergy Marketing & Trading, LLC. 3. This Certificate of Amendment to the Certificate of Formation shall be effective as of June 8, 1999. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment to the Certificate of Formation as of this eighth day of June, 1999. CINERGY CAPITAL & TRADING, INC. ------------------------------- Michael J. Cyrus President # 45441 EX-99 14 0014.txt CINERGY MARKETING AND TRADING AMENDED AGREEMENT SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED LIABILITY COMPANY, dated as of June 8, 1999 (the "Agreement"), of Cinergy Marketing & Trading, LLC (the "Company"), by Cinergy Capital & Trading, Inc., as the sole member of the Company (the "Member"). RECITALS The Member desires to amend and restate the Agreement, in accordance with the Act, as to the name of the Company. 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 "Cinergy Marketing & Trading, 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: ________________________________ Michael J. Cyrus President SCHEDULE 1 OWNERSHIP INTEREST MEMBER % OWNERSHIP Cinergy Capital & Trading, Inc. 100% EX-99 15 0015.txt CINERGY TELECOMMUNICATIONS CERTIFICATE OF INCORP. CERTIFICATE OF INCORPORATION OF Cinergy Telecommunication Networks 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 Telecommunication Networks 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 Richard G. Beach, 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 7th day of December, 1999. /S/RICHARD G. BEACH ------------------- Richard G. Beach Sole Incorporator Doc. 52563 EX-99 16 0016.txt CINERGY EPCOM CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF CINERGY EPCOM, 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: CINERGY EPCOM, 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 MEMBER/S. 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 MEMBER/S OF THE COMPANY TO SUCH AMENDMENT HAS BEEN DULY OBTAINED. THE UNDERSIGNED DOES HEREBY CERTIFY, MAKE AND ACKNOWLEDGE THIS CERTIFICATE OF FORMATION ON THIS 20TH DAY OF AUGUST, 1999. /S/ RICHARD G. BEACH -------------------- Richard G. Beach Sole Organizer 48198 EX-99 17 0017.txt CINERGY EPCOM COLLEGE PARK CERT OF INCORPORATION CERTIFICATE OF FORMATION OF CINERGY EPCOM COLLEGE PARK, 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: CINERGY EPCOM COLLEGE PARK, 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 MEMBER/S. 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 MEMBER/S OF THE COMPANY TO SUCH AMENDMENT HAS BEEN DULY OBTAINED. THE UNDERSIGNED DOES HEREBY CERTIFY, MAKE AND ACKNOWLEDGE THIS CERTIFICATE OF FORMATION ON THIS 20TH DAY OF AUGUST, 1999. /S/ RICHARD G. BEACH -------------------- Richard G. Beach Sole Organizer 48298 EX-99 18 0018.txt CERTIFICATE OF INCORPORATION SOLUTIONS OF GOLDEN CERTIFICATE OF INCORPORATION OF Cinergy Solutions of Golden, 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 Golden, 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 Richard G. Beach, 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 March, 1999. ------------------------------ Richard G. Beach Sole Incorporator #42670 EX-99 19 0019.txt TCS OF ASHTABULA CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF ASHTABULA 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 ASHTABULA 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 CENTER, 1209 ORANGE STREET, WILMINGTON, NEW CASTLE COUNTY, DELAWARE 19801, 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 THE OPERATING AGREEMENT (DEFINED IN ARTICLE VI). ARTICLE IV POWERS EXCEPT AS RESTRICTED BY THIS 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 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. ARTICLE VI ADOPTION OF OPERATING AGREEMENT THE INITIAL LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY (THE "OPERATING AGREEMENT") SHALL BE ADOPTED BY ITS MEMBERS. THE OPERATING AGREEMENT MAY CONTAIN ANY PROVISIONS FOR THE REGULATION AND MANAGEMENT OF THE AFFAIRS OF THE COMPANY NOT INCONSISTENT WITH LAW OR THIS CERTIFICATE OF FORMATION. THE UNDERSIGNED DOES HEREBY CERTIFY, MAKE AND ACKNOWLEDGE THIS CERTIFICATE OF FORMATION ON THIS 20TH DAY OF APRIL, 1999. /S/ VINCENT J. FARAGO --------------------- Vincent J. Farago Authorized Person EX-99 20 0020.txt TCS OF COLLEGE PARK CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF COLLEGE PARK 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 College Park LLC. ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware, or such other location as the Parties by mutual consent shall determine. The initial registered agent of the Company shall be: c/o The Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, 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 Operating Agreement (defined in Article VI). 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 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. ARTICLE VI ADOPTION OF LIMITED LIABILITY COMPANY AGREEMENT The initial Limited Liability Company Agreement of the Company (the "Operating Agreement") shall be adopted by its members. The Operating Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on this 18th day of February, 1999. /S/ VINCENT J. FARAGO --------------------- Vincent J. Farago Authorized Person #: 30179 EX-99 21 0021.txt TCS OF DANVILLE CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF Trigen-Cinergy Solutions of Danville 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 Danville 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 29th day of November, 1999. /S/RICHARD G. BEACH ------------------- Richard G. Beach Sole Organizer #52159 EX-99 22 0022.txt TRIGEN-CINERGY OF LANSING CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF LANSING 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 LANSING 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 3RD DAY OF NOVEMBER, 1999. /S/RICHARD G. BEACH ------------------- Richard G. Beach Sole Organizer #51195 EX-99 23 0023.txt TCS OF OWINGS MILLS CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF OWINGS MILLS 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 OWINGS MILLS 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, DELAWARE19801 , OR SUCH OTHER LOCATION AS THE MEMBERS BY MUTUAL CONSENT SHALL DETERMINE. THE INITIAL REGISTERED AGENT OF THE COMPANY SHALL BE: C/O THE CORPORATION TRUST COMPANY, 1209 ORANGE STREET, WILMINGTON, NEW CASTLE COUNTY, DELAWARE 19801, OR SUCH OTHER LOCATION AS THE MEMBERS 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 THE OPERATING AGREEMENT (DEFINED IN ARTICLE VI). ARTICLE IV POWERS EXCEPT AS RESTRICTED BY THIS 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 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. ARTICLE VI ADOPTION OF OPERATING AGREEMENT THE INITIAL LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY (THE "OPERATING AGREEMENT") SHALL BE ADOPTED BY ITS MEMBERS. THE OPERATING AGREEMENT MAY CONTAIN ANY PROVISIONS FOR THE REGULATION AND MANAGEMENT OF THE AFFAIRS OF THE COMPANY NOT INCONSISTENT WITH LAW OR THIS CERTIFICATE OF FORMATION. THE UNDERSIGNED DOES HEREBY CERTIFY, MAKE AND ACKNOWLEDGE THIS CERTIFICATE OF FORMATION ON THIS 20TH DAY OF SEPTEMBER, 1999. /S/ VINCENT J. FARAGO --------------------- Vincent J. Farago Authorized Person 58604 EX-99 24 0024.txt TCS OF OWING MILLS ENERGY EQUIP CERT OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF OWINGS MILLS ENERGY EQUIPMENT LEASING 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: OWINGS MILLS ENERGY EQUIPMENT LEASING 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, DELAWARE19801 , OR SUCH OTHER LOCATION AS THE MEMBERS BY MUTUAL CONSENT SHALL DETERMINE. THE INITIAL REGISTERED AGENT OF THE COMPANY SHALL BE: C/O THE CORPORATION TRUST COMPANY, 1209 ORANGE STREET, WILMINGTON, NEW CASTLE COUNTY, DELAWARE 19801, OR SUCH OTHER LOCATION AS THE MEMBERS 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 THE OPERATING AGREEMENT (DEFINED IN ARTICLE VI). ARTICLE IV POWERS EXCEPT AS RESTRICTED BY THIS 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 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. ARTICLE VI ADOPTION OF OPERATING AGREEMENT THE INITIAL LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY (THE "OPERATING AGREEMENT") SHALL BE ADOPTED BY ITS MEMBERS. THE OPERATING AGREEMENT MAY CONTAIN ANY PROVISIONS FOR THE REGULATION AND MANAGEMENT OF THE AFFAIRS OF THE COMPANY NOT INCONSISTENT WITH LAW OR THIS CERTIFICATE OF FORMATION. THE UNDERSIGNED DOES HEREBY CERTIFY, MAKE AND ACKNOWLEDGE THIS CERTIFICATE OF FORMATION ON THIS 20TH DAY OF OCTOBER, 1999. /S/ ROBERT G. REIDY ------------------- Robert G. Reidy Authorized Person 58590 EX-99 25 0025.txt TCS OF ROCHESTER CERTIFICATE OF FORMATION CERTIFICATE OF FORMATION OF TRIGEN-CINERGY SOLUTIONS OF ROCHESTER 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 Rochester LLC. ARTICLE II REGISTERED OFFICE, REGISTERED AGENT The initial registered office of the Company shall be: c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, or such other location as the members by mutual consent shall determine. The initial registered agent of the Company shall be: c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, or such other location as the members 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 Operating Agreement (defined in Article VI). ARTICLE IV P0WERS Except as restricted by this 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. 55312 ARTICLE V AMENDEMENTS The Company reserves the right to amend its Certificate of Formation from time to time in accordance with the Act, provided, that the unanimous approval of the members of the Company to such amendment has been duly obtained. ARTICLE VI ADOPTION OF OPERATING AGREEMENT The initial Limited Liability Company Agreement of the Company (the "Operating Agreement") shall be adopted by its members. The Operating Agreement may contain any provisions for the regulation and management of the affairs of the Company not inconsistent with law or this Certificate of Formation. The undersigned does hereby certify, make and acknowledge this Certificate of Formation on the 19th day of October, 1999. /S/ BARBARA FARR ---------------- Barbara Farr Authorized Person 55312 EX-99 26 0026.txt ELY POWER LIMITED ARTICLES OF ASSOCIATION THE COMPANIES ACT 1985 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION OF ELY POWER LIMITED (ADOPTED BY WRITTEN RESOLUTION PASSED ON 1998) 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)1000 DIVIDED INTO 1000 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. 1.1 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 27 0027.txt ARTICLES OF ASSOCIATION OF ANGLIAN STRAW LIMITED THE COMPANIES ACT 1985 PRIVATE COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION OF ANGLIAN STRAW LIMITED (ADOPTED BY WRITTEN RESOLUTION PASSED ON 1998) 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)1000 divided into 1000 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 28 0028.txt CERTIFICATE OF INCORPORATION OF CG FOOTE CREEK CERTIFICATE OF INCORPORATION OF Cinergy Global Foote Creek, 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 Foote Creek, 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 23rd day of November, 1999. /S/ JULIA S. JANSON ------------------- Julia S. Janson Sole Incorporator Doc. 44106 EX-99 29 0029.txt BY-LAWS OF CINERGY GLOBAL FOOTE CREEK BY-LAWS OF CINERGY GLOBAL FOOTE CREEK, INC. MAY 4, 1999 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 FOOTE CREEK, 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 determination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. SECTION 8.6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. SECTION 8.7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or 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. 44099 EX-99 30 0030.txt CERTIFICATE OF CINERGY GLOBAL FOOTE CREEK II CERTIFICATE OF INCORPORATION OF Cinergy Global Foote Creek II, 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 Foote Creek II, 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 Richard G. Beach, 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 23rd day of November, 1999. /S/ RICHARD G. BEACH -------------------- Richard G. Beach Sole Incorporator Doc. 52021 EX-99 31 0031.txt BY-LAWS OF CINERGY GLOBAL FOOTE CREEK II ================================================================= BY-LAWS OF CINERGY GLOBAL FOOTE CREEK II, INC. NOVEMBER 23, 1999 ================================================================= 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 FOOTE CREEK II, 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. 1 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 determination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. SECTION 8.6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. SECTION 8.7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or 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 32 0032.txt ARTICLES OF ASSOC. CINERGY GLOBAL TRADING LIMITED CERTIFICATE NO: 3776925 THE COMPANIES ACT 1985 ---------------------------- PRIVATE COMPANY LIMITED BY SHARES ----------------------------- MEMORANDUM - AND - ARTICLES OF ASSOCIATION OF CINERGY GLOBAL TRADING LIMITED ---------------------------------------- INCORPORATED ON 25 MAY 1999 ---------------------------------------- EVERSHEDS 115 COLMORE ROW BIRMINGHAM B3 3AL REF: ART.28 BIRCORP: 187734 THE COMPANIES ACT 1985 A PRIVATE COMPANY LIMITED BY SHARES MEMORANDUM OF ASSOCIATION OF CINERGY GLOBAL TRADING LIMITED 1. THE COMPANY'S NAME IS "CINERGY GLOBAL TRADING LIMITED".1 2. The Company's registered office is to be situated in England and Wales. 3. The Company's objects are: (i) To carry on all or any of the businesses of a sales and trading company in relation to natural and all other types of gas, oil, and any other natural resources, in the UK or elsewhere, in any manner whatsoever and for all purposes, including without limitation exploration, discovery, drilling, mining, extracting, producing, treating, transporting, carrying, shipping, distributing, selling, buying, supplying (whether on a commercial or consumer basis or otherwise), storing, brokering, dealing, speculating, importing, exporting, providing consultancy services, and any other business related thereto, including the application for and holding of all necessary licences and consents. ii) To carry on all or any of the business of an electricity generating, sale and trading company, in the UK or elsewhere, in any manner whatsoever and for all purposes, including without limitation generating, producing, processing, transmitting, transforming, converting, distributing, selling, buying, supplying (whether on a commercial or consumer basis or otherwise), brokering, dealing, speculating, importing and exporting electricity, providing electricity consultancy services, and any other business related thereto, including the application for and holding of all necessary licences and consents. ---------------------------------------------------------------------- 1 The Company was formerly known as Foray 1229 Limited. Its name was changed by special resolution on 6 July 1999. (iii) To carry on business as a general commercial company. (iv) To carry on any other business or activity which may seem to the Company capable of being carried on directly or indirectly for the benefit of the Company. (v) To acquire by any means any real or personal property or rights whatsoever and to use, exploit and develop the same. (vi) To conduct, promote and commission research and development in connection with any activity or proposed activity of the Company, and to apply for and take out, purchase or otherwise acquire any patents, patent rights, inventions, secret processes, designs, copyrights, trade marks, service marks, commercial names and designations, know-how, formulae, licences, concessions and the like (and any interest in any of them) and any exclusive or non-exclusive or limited right to use, and any secret or other information as to, any invention or secret process of any kind; and to use, exercise, develop, and grant licences in respect of, and otherwise turn to account and deal with, the property, rights and information so acquired. (vii)To acquire by any means the whole or any part of the assets, and to undertake the whole or any part of the liabilities, of any person carrying on or proposing to carry on any business or activity which the Company is authorised to carry on or which can be carried on in connection therewith, and to acquire an interest in, amalgamate with or enter into any arrangement for sharing profits, or for co-operation, or for limiting competition, or for mutual assistance with any such person and to give or accept, by way of consideration for any of the acts or things aforesaid or property acquired, any shares, whether fully or partly paid up, debentures, or other securities or rights that may be agreed upon. (viii) To subscribe for, underwrite, purchase or otherwise acquire, and to hold, and deal with, any shares, stocks, debentures, bonds, notes and other securities, obligations and other investments of any nature whatsoever and any options or rights in respect of them; and otherwise to invest and deal with the money and assets of the Company. (ix) To lend money and give credit to any person. (x) To borrow money, obtain credit and raise finance in any manner. (xi) To secure by mortgage, charge, lien or other form of security upon the whole or any part of the Company's property or assets (whether present or future), including its uncalled capital, the performance or discharge by the Company or any other person of any obligation or liability. (xii)To provide any guarantee or indemnity in respect of the performance or discharge of any obligation or liability by, or otherwise for the benefit of, any person. (xiii) To draw, make, accept, endorse, discount, negotiate, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments. (xiv)To apply for, promote and obtain any Act of Parliament, charter, privilege, concession, licence or authorisation of any government, state, department or other authority (international, national, local, municipal or otherwise) for enabling the Company to carry any of its objects into effect or for extending any of the Company's powers or for effecting any modification of the Company's constitution, or for any other purpose which may seem expedient, and to oppose any actions, steps, proceedings or applications which may seem calculated directly or indirectly to prejudice the interests of the Company or of its members. (xv) To enter into any arrangements with any government, state, department or other authority (international, national, local municipal or otherwise), or any other person, that may seem conducive to the Company's objects or any of them, and to obtain from any such government, state, department, authority, or person, and to carry out, exercise and exploit, any charter, contract, decree, right, privilege or concession which the Company may think desirable. (xvi) To do all or any of the following, namely: (1) to establish, provide, carry on, maintain, manage, support, purchase and contribute (in cash or in kind) to any pension, superannuation, retirement, redundancy, injury, death benefit or insurance funds, trusts, schemes or policies for the benefit of, and to give or procure the given of pensions, annuities, allowances, gratuities, donations, emoluments, benefits of any description (whether in kind or otherwise), incentives, bonuses, assistance (whether financial or otherwise) and accommodation in such manner and on such terms as the company thinks fit to, and to make payments for or towards the insurance of - (a) any individuals who are or were at any time in the employment of, or directors or officers of (or held comparable or equivalent office in), or acted as consultants or advisers to or agents for - (i) the Company or any company which is or was its parent company or is or was a subsidiary undertaking of the Company or any such parent company; or (ii) any person to whose business the Company or any subsidiary undertaking of the Company is, in whole or in part, a successor directly or indirectly; or (iii)any person otherwise allied to or associated with the Company; (b) any other individuals whose service has been of benefit to the Company or who the Company considers have a moral claim on the Company; and (c) the spouses, widows, widowers, families and dependants of any such individuals as aforesaid; and (2) to establish, provide, carry on, maintain, manage, support and provide financial or other assistance to welfare, sports and social facilities, associations, clubs, funds and institutions which the company considers likely to benefit or further the interests of any of the aforementioned individuals, spouses, widows, widowers, families and dependants. (xvii) To establish, maintain, manage, support and contribute (in cash or in kind) to any schemes or trusts for the acquisition of shares in the Company or its parent company by or for the benefit of any individuals who are or were at any time in the employment of, or directors or officers of, the Company or any company which is or was its parent company or is or was a subsidiary undertaking of the Company or any such parent company, and to lend money to any such individuals to enable them to acquire shares in the Company or in its parent company and to establish, maintain, manage and support (financially or otherwise) any schemes for sharing profits of the Company or any other such company as aforesaid with any such individuals. (xviii) To subscribe or contribute (in cash or in kind) to, and to promote or sponsor, any charitable, benevolent or useful object of a public character or any object which the Company considers may directly or indirectly further the interests of the Company, its employees or its members. (xix)To pay and discharge all or any expenses, costs and disbursements, to pay commissions and to remunerate any person for services rendered or to be rendered, in connection with the formation, promotion and flotation of the Company and the underwriting or placing or issue at any time of any securities of the Company or of any other person. (xx) To the extent permitted by law, to give any kind of financial assistance, directly or indirectly, for the acquisition of shares in the Company or any parent company of the Company or for the reduction or discharge of any liability incurred for the purpose of such an acquisition. (xxi)To issue, allot and grant options over securities of the Company for cash or otherwise or in payment or part payment for any real or personal property or rights therein purchased or otherwise acquired by the Company or any services rendered to, or at the request of, or for the benefit of, the Company or as security for, or indemnity for, or towards satisfaction of, any liability or obligation undertaken or agreed to be undertaken by or for the benefit of the Company, or in consideration of any obligation or liability (even if valued at less than the nominal value of such securities) or for any other purpose. (xxii) To procure the Company to be registered or recognised in any part of the world. (xxiii) To promote any other company or entity for the purpose of acquiring all or any of the property or undertaking any of the liabilities of the Company, or both, or of undertaking any business or activity which may appear likely to assist or benefit the Company, and to place or guarantee the placing of, underwrite, subscribe for, or otherwise acquire all or any part of the shares, debentures or other securities of any such company or entity as aforesaid. (xxiv) To dispose by any means of the whole or any part of the assets of the Company or of any interest therein. (xxv)To distribute among the members of the Company in kind any assets of the Company. (xxvi) To do all or any of the above things in any part of the world, and either as principal, agent, trustee, contractor or otherwise, and either alone or in conjunction with others, and either by or through agents, trustees, sub-contractors or otherwise. (xxvii) To do all such other things as may be deemed, or as the Company considers, incidental or conducive to the attainment of the above objects or any of them. AND IT IS HEREBY DECLARED that in this clause: A) unless the context otherwise requires, words in the singular include the plural and vice versa; B) unless the context otherwise requires, a reference to a person includes a reference to a body corporate (including, without prejudice to the generality of that term, any company which is a parent company of the Company or is a subsidiary undertaking of the Company or any such parent company, or is associated in any way with the Company) and to an unincorporated body of persons: C) a reference to any property, right or asset includes a reference to any interest in it, and a reference to any liability includes a reference to any loss; D) references to "other" and "otherwise" shall not be construed eiusdem generis where a wider construction is possible; E) a reference to anything which the Company thinks fit or desirable or considers or which may seem (whether to the Company or at large) expedient, conducive, calculated or capable, or to any similar expression connoting opinion or perception, includes, in relation to any power exercisable by or matter within the responsibility of the directors of the Company, a reference to any such thing which the directors so think or consider or which may so seem to the directors or which is in the opinion or perception of the directors; F) the expressions "subsidiary undertaking" and "parent company" have the same meaning as in section 258 of and Schedule 10A to the Companies Act 1985 or any statutory modification or re-enactment of it; G) nothing in any of the foregoing paragraphs of this clause is to be taken (unless otherwise expressly stated) as requiring or permitting the Company to exercise any power only for the benefit of the Company or only in furtherance of any of its objects; H) the objects specified in each of the foregoing paragraphs of this clause shall be separate and distinct objects of the Company and accordingly shall not be in any way limited or restricted (except so far as otherwise expressly stated in any paragraph) by reference to or inference from the terms of any other paragraph or the order in which the paragraphs occur or the name of the Company, and none of the paragraphs shall be deemed merely subsidiary or incidental to any other paragraph. 4. The liability of the members is limited. 5. The share capital of the Company is(pound)1,000, divided into 1,000 shares of(pound)1.00 each. -------- 1 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 Number of shares of Subscribers taken by each Subscriber JACQUELINE FISHER One 926 Kingstanding Road Birmingham B44 9NG Secretary JOANNE LINDSEY CLARKE One 10 Gordon Road Harborne Birmingham B16 9HB Solicitor - -------------------------------------------------------------------------------- DATED 13TH May 1999 - -------------------------------------------------------------------------------- WITNESS to the above signatures: KIM FALLAN 50 Quarry Lane Northfield Birmingham B31 2PY Secretary THE COMPANIES ACT 1985 ----------------------- PRIVATE COMPANY LIMITED BY SHARES ----------------------- ARTICLES OF ASSOCIATION OF CINERGY GLOBAL TRADING 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. "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. 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 to 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 MEETING 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 a as 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 of Table A 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. 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 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 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 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 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. 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 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 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 to in Article 20.2. Names, addresses and descriptions of Subscribers JACQUELINE FISHER 926 Kingstanding Road Birmingham B44 9NG Secretary JOANNA LINDSEY CLARKE 10 Gordon Road Harborne Birmingham B16 9HB Solicitor - -------------------------------------------------------------------------------- DATED: 13TH May 1999 - -------------------------------------------------------------------------------- Witness to the above signatures:- KIM FALLAN 50 Quarry Lane Northfield Birmingham B31 2PY Secretary EX-99 33 0033.txt CERTIFICATE FOR CINERGY GLOBAL POWER IBERIA CERTIFICATE OF INCORPORATION WITH RESPECT TO CINERGY GLOBAL POWER IBERIA, S.A. The underdesigned, Cesar Rodriguez, attorney-at-law, officiating under Oviedo's Bar Association, declares that: 1.- CINERGY GLOBAL POWER IBERIA, S.A.,hereinafter referred to as: "The Company"-is a company with limited liability, organised under the laws of Spain, having its registered office at Paseo de la Castellana 23, Madrid, Spain, and having its offices at such place, and being registered on the Mercantile Register of Madrid under number M-221995. 2.- according to the registration of the aforementioned Mercantile Register, the Articles of Association of the Company have not been amended since its incorporation, executed before D. Vicente Moreno-Torres Camy civil law notary, officiating in Madrid; 3.- ACCORDING TO ARTICLE 2 OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE OBJECTS OF THE COMPANY ARE TO ASSESS, DEVELOP, CONSTRUCT, EXPLOIT AND/OR OPERATE ON EITHER GENERATION OR COMMERCIALISATION OF ELECTRIC ENERGY. The listed activities can be developed indirectly, totally or in part, through the participation in other companies, with similar or identical object. 4.- The Company can give securities for debts of group-companies and of its shareholders. 5.- the Company can hold shares/shares in, manage and finance these enterprises. 6.- according to the registration of the aforementioned Mercantile Register, the following persons or entities are directors of the Company: a) Mr. John Bryant, born on 11 June 1946, married, of British nationality, residing at 105 Home Park, Wimbledon, London SW19 7HT, England. b) Mr. Derek John Spencer, born on 29 May 1941, married, of British nationality, residing at Paseo de la Castellana, n degree 23, Esc.1(a), 1 degree de Madrid. c) Mr. Francisco Rausell Solari, born on 16 December 1952, married, of Spanish nationality, residing at calle Padre Claret, 6, 7 degree B, Madrid Signed at Madrid on March 29, 1999 Fdo. Cesar Rodriguez Fdo. Francisco Rausell Solari Director EX-99 34 0034.txt ARTICLES OF ASSOC. CINERGY GLOBAL POWER IBERIA ARTICLES OF ASSOCIATION OF CINERGY GLOBAL POWER IBERIA, S A ARTICLE 1. NAME This public limited company will be called CINERGY GLOBAL POWER IBERIA, S A Sole Trader and will be regulated by these Articles of Association and those legal provisions that may be applicable. ARTICLE 2. OBJECT 1 The company has as its object the consultancy, development, construction, operation and/or ownership of generating installations and the marketing of electricity, having complied with the specific administrative procedures and requirements that may be legally required. The company has the object of the possession, acquisition and disposal of property for the above mentioned purposes. 2 The activities comprising the company's object that require, in order to be carried out legally, some professional title, administrative authorisation or recording in public registers, may only be carried out through a person that holds the said title who may not undertake the same until the authorisation or required registration is obtained. 3 The activities that comprise the company's objects shall be carried out by the company totally or in part, directly or indirectly, in any of the forms legally admitted and, specifically, through the ownership of shares or participations in companies with similar or identical objects. ARTICLE 3. REGISTERED OFFICE 1 The registered office of the company will be situated in Paseo de la Castellana, n(0)23, 2(a)planta, Madrid. 2 The management body may determine the change of registered office within the municipal area, as well as the opening, closure or movement of branches. ARTICLE 4. DURATION It will be indefinite; nevertheless the General Meeting may, in accordance with the provisions of the law and these Articles of Association, agree at any time to its winding up and liquidation, as well as the merger with others or the sub-division into another or other companies. ARTICLE 5. COMMENCEMENT OF TRADING The company will commence trading the day that the formation Deed is granted. If, for the commencement of any of the operations set out in the previous Article, the law should require the acquisition of an administrative licence recording in a public register or any other requirement, the company shall not be able to commence that specific activity until the requirement has been complied with in accordance with the law. CHAPTER 2: SHARE CAPITAL - SHARES ARTICLE 6. CAPITAL The share capital is Ptas. 10,000,000 (ten million pesetas), represented by 1,000 nominal shares with a value of TEN THOUSAND PESETAS each, numbered consecutively from 1 to 10,000, both inclusive, totally subscribed and twenty five per cent paid-up. The uncalled amounts will be paid in cash, by payment into a current bank account opened in the name of the company at the time or date that is set by the management body, within a maximum period of fifteen years following the date of the deed of incorporation. The shares will be represented by certificates that may include one or more shares of the same series, will be consecutively numbered, and will be issued from books with counterfoils. They will contain as a minimum the details required by law and will be signed by the sole director, whose signature may be reproduced by mechanical means, in compliance with the provisions of the law. The shareholder has the right to receive the certificates that he is due free of charge. The shares will be shown in a register kept by the company, in which will be recorded the successive transfers, as well as the transfer charges levied upon them, in the form set out by law. The management may request the evidence that they deem appropriate in order to verify the transfer of shares or the validity of the chain of endorsements, prior to recording the transfer in the register. Whilst the share certificates have not been stamped and delivered, the shareholder will have the right to obtain a certificate of the shares recorded in his name. ARTICLE 7. SHARE TRANSFER RESTRICTIONS Where share transfers occur inter vivos giving title to third parties, the following requirements will be adhered to: 1 The shareholder who wishes to transfer his shares or part of them, will advise the management body in writing, indicating the number, price and purchaser, who in turn within a period of 10 calendar days, must communicate it accordingly to each and every one of the other shareholders at the address that is shown for each one of them in the Register of nominal shares. Within the following 30 calendar days from the date of notice to the shareholders, these latter may opt to acquire the shares, and if several of them wish to exercise the said right, the said shares will be distributed between them pro-rata according to the shares that they already possess, allotting any surplus, if any, after division, to the holder of the largest number of shares. This period having passed, the company shall opt, within a new period of 20 calendar days counting from the end of the previous period, between allowing the requested transfer or the acquisition of the shares for itself, in the form legally allowed. This last period having ended without the shareholders or the company having made use of their preferential rights of purchase, the shareholder will become free to transfer his shares to the person and in the conditions that were advised to the management body, provided that the transfer takes place within two months following the end of the last period indicated. 2 For the preferential right to purchase to be exercised, the purchase price, in case of disagreement, will be that stated by the company's auditors and, if there is no obligation to have the accounts audited, by three experts, one appointed by each party and the other by common agreement, and if this is not possible, by the Mercantile Registrar appropriate for the registered offices of the company. 3 Transfers in the case of death are not subject to any conditions, not even those carried out in favour of the spouse, descendant or older relation of the disposer. 4 Any transfer to a third party that does not follow the provisions set out in these Articles of Association will be null and void. CHAPTER THREE: MANAGEMENT BODIES ARTICLE 8. MANAGEMENT BODIES The company will be regulated by the General Shareholders' Meeting and managed by a sole director. ARTICLE 9. GENERAL MEETING 1 The shareholders of a General Meeting will decide by a majority those matters they are legally empowered to deal with. All the shareholders, including the dissenters and those not attending the meeting, will be bound by the resolutions of the General Meeting, without prejudice to the rights and actions they have in law. 2 The General Meeting will assemble as an ordinary meeting within the first six months of each company year, and as an extraordinary meeting whenever convened by the management body, on its own initiative or because of a request made according to Article 100 of the law. 3 Nevertheless, the General Meeting, even though it has been convened as an ordinary meeting, shall be able to discuss and decide any matter within its powers and in compliance with Article 103 of the Companies Act, if appropriate. 4 The requirements for convening the meeting, procedures, quorum, manner of a discussion and adoption of resolutions, drawing up and approval of Minutes will be carried out in accordance with the current Companies Act. Each share carreies the right to one vote. 5 Given that all the shares are nominal, the management body may, in those cases allowed by law, substitute the legally established notifications by a written notice to each shareholder or interested party complying in each case with that set out in the law. 6 Minutes of the General Meetings will be entered into the Minute Book. The Minutes may be approved by the General Meeting itself or failing this, within a period of fifteen days. The certificates of the entries in the Minute Book will be issued in accordance with the provisions of Article 109 in the Mercantile Register Regulations. ARTICLE 10. MANAGEMENT BODY 1 The Company will be managed, administered and represented by a sole director without prejudice to the matters that are the province of the General Meeting. 2 The sole director does not have to be a shareholder to be appointed as such, and may equally be an individual or a body corporate. The said office will not be remunerated. 3 The sole director will hold office for a period of five years, and may be re-elected, one or more times, for periods of the same duration. At the end of the said period, the appointment will cease at the next General Meeting or the period during which the Ordinary General Meeting should be held. ARTICLE 11. MANAGEMENT POWERS 1 The management body is responsible for the representation of the Company, in legal and other matters and will cover all the activities comprised in the Company's Objects. 2 The management body is empowered to deal with all matters that arise concerning the operation, representation and management of the Company, including all types of acts of disposal. CHAPTER IV ARTICLE 12. COMPANY YEAR, BALANCE SHEET, BOOK-KEEPING 1 The company year will commence on 1st January and will close each year on 31st December. As an exception, the first company year will start on the date the deed of incorporation is signed and will end on 31st December of the same year. 2 The management body is obliged to draw up, within a maximum period of three months commencing from the company's year end, the annual accounts, the management report and the proposal for the statement of the results. The annual accounts will comprise the balance sheet, the profit and loss account and the report. 3 Upon notice of the General Meeting any shareholder will be able to obtain from the company, immediately and without charge, the documents that have to be submitted for approval to the Meeting and the report of the auditors, if any. The notice of the Meeting shall specifically state this right. 4 The General Meeting will decide upon the statement of the results in accordance with the approved balance sheet, distributing dividends to the shareholders in the proportions in which the capital has been paid up, charging against profits or freely available reserves, once the Legal Reserve has been covered, deciding the amounts that are judged appropriate to provide in the various classes of voluntary reserves that may be agreed, in compliance with the legal provisions for the support of the share capital and respecting the privileges that certain types of shares enjoy. 5 The management body may decide the distributions of amounts on account of dividends, with the limitations imposed by and in accordance with the provisions of the law. 6 The annual accounts will be lodged, together with the appropriate certificate of their adoption, with the Mercantile Register in the month following their approval. CHAPTER VI ARTICLE 13 - WINDING UP 1 The winding up of the Company will be regulated by the provisions of the Companies Act in respect of its causes, procedures and effects. 2 When the company has to be wound up for legal reasons that require the agreement of the General Meeting, the management body must convene the said meeting within a period of two months from the time the said reason arose, to adopt the resolution for winding up, proceeding in the manner established in law, if the adoption, whatever the reason for its cause, should not be obtained. 3 When the winding up arises because the net assets have been reduced to an amount totalling less than one half of the share capital, the said winding up of the company may be avoided by an agreement to increase or reduce the share capital or by a reconstruction of the shareholders' equity by a sufficient amount. The said regularisation will be effective provided that it takes place before a judicial order to wind up the company is issued. 4 The General Meeting, if it should agree to a winding up, shall proceed to the appointment and the establishment of the powers of the liquidator or liquidators, who must always be an uneven number, with the powers indicated in Article 272 of the Companies Act and others that may have been made by the Shareholders' General Meeting on agreeing their appointment. ARTICLE 14. APPLICATION OF THE LAW The provisions of the Companies Act will be observed and will apply to all those matters that have not been provided for in these Articles of Association. FINAL PROVISION Any litigious company matter that may arise between the Company and its managers or shareholders, or between the managers and shareholders, or the latter between themselves, may be submitted to arbitration by the Court of Arbitration of the Chamber of Commerce and Industry of Madrid, which body shall appointment a single arbitrator and who will manage the arbitration in accordance with its regulations, and whose arbitration decision shall be binding upon the parties. Those matters that are not of a free disposition are exempt from this requirement. EX-99 35 0035.txt CERTIFICATE OF INCORPORATION ESCAMBEO CERTIFICATE OF INCORPORATION WITH RESPECT TO ESCAMBEO, S.L. THE UNDERSIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER SPANISH BAR ASSOCIATION, DECLARES THAT: 1.- ESCAMBEO, S.L. HEREINAFTER REFERRED TO AS THE "COMPANY"-IS A CLOSED COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT SAN PEDRO, PARROQUIA AS NEVES, ORTIGUEIRA, CORUNA, GALICIA AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF CORUNA ON PAGE C-23.682 OF VOLUME 2292 (GENERAL ARCHIVE SECTION), FOLIO 12. 2.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE NOT BEEN AMENDED SINCE THE INCORPORATION OF THE COMPANY, EXECUTED BEFORE D. EDUARDO MARTIN ALCALDE, CIVIL LAW NOTARY, OFFICIATING IN MADRID, ON 17 NOVEMBER 1999. 3.- ACCORDING TO ARTICLE 4 OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE PURPOSE OF THE COMPANY IS THE CONSTRUCTION, INSTALLATION AND DEVELOPMENT OF ELECTRICAL ENERGY PRODUCTION SITES, ESPECIALLY THROUGH THE EXPLOITATION OF WIND FARMS. THE LISTED ACTIVITIES CAN BE DEVELOPED INDIRECTLY, TOTALLY OR PARTIALLY, THROUGH 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 PARTICIPATE IN, MANAGE AND FINANCE THESE ENTERPRISES. 6.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE DIRECTORS OF THE COMPANY ARE: (A) DEREK JOHN SPENCER, BORN 29 MAY 1941, MARRIED, OF BRITISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. (B) MARIA GARCIA ARGUELLES, BORN ON 21 FEBRUARY 1970, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. (C) FERNANDO MOLINA MARTINEZ, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 19 CALLE NAVARRA, AGUSTIN DE GUADALIX, MADRID. (D) FERNANDO MOLINA RODRIGUEZ, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 82 CALLE EDUARDO PONDAL, PONTEVEDRA. SIGNED IN MADRID ON 24 APRIL 2000 FDO. CESAR RODRIGUEZ GONZALEZ OVIEDO BAR ASSOCIATION (SPAIN), N(0) 3.133 EX-99 36 0036.txt ARTICLES OF ASSOCIATION OF ESCAMBEO ARTICLES OF ASSOCIATION OF THE MERCANTILE COMPANY ESCAMBEO, SOCIEDAD LIMITADA PART I - NAME, DURATION, ADDRESS, OBJECT ARTICLE 1 - NAME A LIMITED LIABILITY COMPANY TO BE KNOWN AS ESCAMBEO, SL is hereby set up, governed by these Articles, and, where no provision is contained therein, by the Limited Liability Company Act, the Companies Register Regulations and other applicable provisions. ARTICLE 2 - LIFE OF THE COMPANY The Company is set up for an unrestricted period. The company shall commence trading on the date of execution of its incorporation documents. ARTICLE 3 - REGISTERED OFFICE The Company's registered office is in San Pedro, Parroquia As Neves, Ortigueira, Coruna, Galicia. The Company may set up branches, agencies or offices in Spain or abroad, upon resolution of the Administrative Body, which may also resolve to move the registered office within the said municipal boundaries and to move branches, agencies or offices. ARTICLE 4 - OBJECT The object of the Company is: (a) To operate on the electricity market in all its processes, from production and co-generation to sale and use of electricity, using all types of supply, including wind power, and taking any necessary or supplementary action for the purpose, complying at all times with current legislation in the trading area. Purchase, lease and concession of business franchises. (b) Research, development and use of new technology. (c) Real estate management, development and operation. The Company may carry out the activities listed directly or indirectly, in whole or in part, through shareholdings in other companies with the same or similar objects. PART II - REGISTERED CAPITAL AND SHARES ARTICLE 5 - REGISTERED CAPITAL The registered capital is THREE THOUSAND AND FIFTY EUROS, divided into FIVE THOUSAND SHARES, cumulative and indivisible, numbered from ONE to FIVE THOUSAND inclusive, with a par value of 0.61 Euros each. Shares forming the said registered capital are fully subscribed and paid up. ARTICLE 6 - SHARE OPTION In capital increases where new shares are created, each shareholder may acquire a number of shares proportionate to the par value of his current holding. The option shall be exercised within the period set when adopting the increase resolution, which may not be less than one month from publication of the offer of the new shares for sale in the Official Bulletin of the Companies Register. The Administrative Body may replace publication of the notice by a letter to each shareholder, and the deadline for acquisition of the new shares shall run from despatch of the said letter. PART III - COMPANY SHARES ARTICLE 7 - COMPANY SHARE SYSTEM Shares may be transferred by all lawful methods, but shall always be officially registered. The foregoing notwithstanding, transfer of shares to non-shareholders is subject to the following rules: 1. The shareholder wishing to transfer all or part of his shares shall so state in a registered letter with receipt, which may be preceded by a fax, to the Administrative Body, stating the number of shares which he wishes to sell, the name and personal details of the initially selected purchaser and the sale price. 2. Transfer shall be subject to Company approval. The Administrative Body shall convene a Shareholders' General Meeting for the purpose to be held within a maximum of 45 days, to resolve as to consent to the transfer of shares to non-shareholders. 3. Shareholders wishing to purchase shall so state within 30 days of the date of receipt of notice from the Administrative Body by registered letter with receipt, or by fax to the Administrative Body, which shall communicate these replies immediately to the seller. 4. If more than one shareholder is interested in purchasing the shares offered for sale, allocation between them shall be proportionate to the number of shares held by each. 5. If shareholders wishing to purchase the shares offered disagree as to the price initially set by the seller, the final sale price of the shares shall be set by the Company auditor or, where appropriate, the Auditor appointed by the Companies Register for the Company's registered office, at the request of an interested party, in compliance with the provisions of Article 29 d. of the Limited Liability Companies Act. 6. If shareholders do not wish to purchase all the shares offered, the seller may proceed with the sale of shares under the agreed conditions and within a maximum period of thirty calendar days from the date on which the Administrative Body informed him of the negative reply of the remaining shareholders. Otherwise his right to carry out the proposed transfer shall lapse and, to put it into effect, he shall recommence the procedure set out in this article. 7. The proposed transfer system under this article shall apply when acquisition of shares has arisen as a consequence of judicial or administrative enforcement proceedings. 8. Restrictions provided in the article shall not apply to acquisition through inheritance, provided that those acquiring them can prove their status as legal heirs of the deceased shareholder. In other cases of acquisition as a result of death the transfer system set out in the previous paragraph hereof shall apply. ARTICLE 8 - CORRESPONDENCE AND SHARE REGISTER The Company shall keep a Share Register containing the personal details of shareholders, shares held and any changes arising. Any shareholder may consult the Share Register, which shall be kept by and under the responsibility of the Administrative Body. Shareholders may obtain a certification of their shares as they appear in the Share Register. PART IV - GOVERNMENT AND ADMINISTRATION OF THE COMPANY ARTICLE 9 - COMPANY BODIES The Company bodies are the General Meeting, which is the supreme authority and at which a majority vote is taken in matters within its jurisdiction, and an Administrative Body responsible for management, administration and representation of the Company, with powers vested in it under the law and these Articles. CHAPTER ONE - THE GENERAL MEETING ARTICLE 10 The General Meeting is the supreme body of the Company and its duly adopted Resolutions shall be binding upon all shareholders, including absentees, abstainers and dissidents. ARTICLE 11 - CALLING The General Meeting shall be convened by the Administrative Body. At least fifteen days shall elapse between calling a General Meeting and its planned date. The calling notice shall be sent out in duplicate to all shareholders appearing the Share Register, to the address appearing therein, and one copy shall be returned signed by the addressee. If he refuses to sign the duplicate, the calling notice shall be served upon him through a notary at the address given. The calling notice shall state the company name, venue, date and time of the meeting, agenda and person or persons sending it out. ARTICLE 12 The Administrative Body shall call a General Meeting as and when it sees fit and at the request of a number of shareholders representing at least 5% of the company capital. In the latter case the meeting shall be called within the month following the date on which notice was served through notarial channels upon the Administrative Body. If the meeting is not called as provided in the previous paragraph, shareholders may appeal to the Judge of First Instance of the area in which the Company is situate, to call the meeting and appoint the [Chairman] and Secretary of the Meeting to be held. ARTICLE 13 A General Meeting shall be held at least once during the first six months of each financial year to approve company management and, if appropriate, adopt the accounts for the previous financial year and resolve as to allocation of results. The Meeting may discuss and agree upon any matter submitted to it provided always that it is validly constituted and within its statutory powers, taking into account the matter to be discussed. ARTICLE 14 - ADOPTION OF RESOLUTIONS Company Resolutions shall adopted by majority vote validly cast provided always that it represents at least 5% of the voting capital. However, Resolutions on authorisation of share transfer to non-shareholders, capital increase or decrease, waiver of option rights in capital increases, changes in the method of organising the Company administration within the limits of these Articles, restructuring, merger, demerger, expansion or winding up of the Company and, in general, any amendment of the Articles of Association, the favourable vote of shareholders representing over 70% of the voting capital is required. The Meeting shall be quorate if attended by a number of shareholders enabling resolutions to be adopted by the majority required for the matter to be discussed. ARTICLE 15 - ATTENDANCE AT GENERAL MEETINGS All shareholders may attend General Meetings. The Administrative Body shall attend General Meetings. They may be attended by Directors, Managers, Attorneys, Technical Advisers and any other persons who the Chairman of the Meeting considers should attend the Meeting in the interest of the correct running of Company affairs. The Chairman of the Meeting may, in principle, permit the attendance of whomsoever he wishes. The Meeting may revoke such authorisation. ARTICLE 16 - UNIVERSAL MEETING A General Meeting shall be validly constituted to discuss any business without prior notice provided always that the total company capital is present or represented and those present agree unanimously to hold the Meeting and on its Agenda. A Universal Meeting may be held anywhere in the country. ARTICLE 17 - ORGANIZATION OF THE MEETING General Meetings shall be held in the area of the Company's registered office, agency or branch. Unanimous meetings may be held wherever shareholders representing the entire Company capital are present. The Meeting shall be chaired by a member of the Administrative Body elected by shareholders present, except when the Administrative Body of the Company is a Board, in which case its Chairman shall chair the Meeting or, in his absence, its Vice-Chairman. If neither of the aforementioned are present, the person elected on each occasion by the majority of shareholders present at the Meeting shall chair it. A member of the Administrative Body specially elected for the purpose by Shareholders present shall act as Secretary unless the administrative Body of the Company is a Board, in which case the Secretary of the Board shall act as Secretary of the Meeting or, in his absence, the Deputy Secretary. If neither of the aforementioned are present the person elected on each occasion by a majority of the shareholders present at the meeting shall act as Secretary. It shall be encumbent on the Chairman of the Meeting to direct the deliberations, to give the floor to speakers, and to determine the duration of successive contributions. ARTICLE 18 - MINUTES AND CERTIFICATION OF GENERAL MEETINGS Minutes of each General Meeting shall be entered in the Book kept for the purpose, together with any resolution adopted and signed by the Chairman and Secretary. The Minutes may be approved by the General Meeting itself or, otherwise, within 15 days by the Chairman and the scrutinisers, one representing the majority and the other the minority. Resolutions of General Meetings may be produced whenever necessary by certification under current legislation. Public registration of resolutions both of the Meeting and the Administrative Body shall be carried out by authorised persons. Any director may also do so without special appointment. CHAPTER TWO: THE ADMINISTRATIVE BODY AND REPRESENTATION ARTICLE 19 - THE ADMINISTRATIVE BODY AND ITS COMPOSITION Company administration may be entrusted to a sole director, to two directors acting in association or jointly and severally or to a Board, at the discretion of the General Meeting without amending the Articles of Association. If the General Meetings opts for the Board, it shall comprise a minimum of three and a maximum of seven Directors. Appointment of such persons, who must be shareholders, is the province of the General Meeting. Appointment of Directors shall take effect as of their acceptance. Board Meetings shall be called by the Chairman when he sees fit, or at the request of a least two Directors, who shall request a Meeting in writing or by fax, with five days notice, stating the matters to be discussed. A period of at least fifteen days must elapse between the date of the calling notice and that of the meeting. The calling notice shall include the Agenda, stating matters to be discussed and enclosing copy of any document to be tabled or submitted to the Board for approval. The Board shall be considered quorate when the majority of its members are present or represented by a proxy. Proxies shall be appointed by letter to the Chairman. Resolutions shall be adopted by the absolute majority of those present at the Meeting. Permanent delegation of some or all of its powers which may be so delegated to an Executive Committee or various appointed directors and the appointment of administrators to assume such office shall require the favourable vote of two thirds of the members of the Board and shall not take effect until it has been registered in the Companies Register. A ballot without a meeting shall be valid provided that it is not opposed by any director. Discussions and Resolutions of the Board shall be entered in a Minute Book and signed by the Chairman and Secretary. The Board shall elect from among its members a Chairman, Secretary and up to two Deputy Secretaries. The Secretary and the Deputy Secretaries need not be directors, in which case they may speak but not vote. The Administrative Body, in whatever form, shall direct, administer and represent the Company within the confines of its object, and may discuss, resolve and operate completely freely in all matters not reserved for the General Meeting under the Law or these Articles, without prejudice to the appointment of any person by the Administration itself. ARTICLE 20 - TERM OF OFFICE Directors' terms of office are unrestricted. Votes representing over one half of the Company capital will be required to remove a director from office. Persons precluded under Act 12/1995 of 11 May or other statutorily disqualified persons may not hold office as Directors. ARTICLE 21 - REMUNERATION OF DIRECTORS The office of Director carries no remuneration. SECTION IV - BALANCE SHEET AND DISTRIBUTION OF PROFIT ARTICLE 22 The financial year shall commence on 1 January and end on 31 December of each year. Exceptionally, the first year shall commence on the date of registration of the Company. ARTICLE 23 The Administrative Body, as provided in the Limited Liability Companies Act and other applicable commercial legislation, shall prepare annual accounts, a report on administration and propose the allocation of results and, where necessary, consolidated accounts and reports for submission to the General Meeting, when they have been checked and reviewed by the Auditors. ARTICLE 24 Any shareholder may, within 15 days prior to a General Meeting held to rule as to the annual accounts, inspect the Company's annual accounts and position either personally or through an expert, taking such time as he sees fit for the purpose. ARTICLE 25 The Company's liquid profits shall be distributed as follows, in accordance with the approved balance sheet. (a) The necessary sum to cover statutory requirements or those of these Articles. (b) The remainder of the profits shall be distributed each year between the shareholders unless such distribution is outvoted by 85% of the registered capital. SECTION VI - WINDING UP AND LIQUIDATION ARTICLE 26 - WINDING UP The Company may be wound up on the grounds set out in the Limited Liability Companies Act. The General Meeting may be duly convened at any time decide to wind up and liquidate the Company. ARTICLE 27 - LIQUIDATORS The General Meeting which agrees the winding up of the Company shall also appoint liquidators who may be former members of the Administrative Body. The number of liquidators shall always be uneven. If the Meeting resolves on the appointment of the former Directors as liquidators and their number is even, the General Meeting shall decide which Director will not be appointed as liquidator. ARTICLE 28 - LIQUIDATION PROCEDURE Liquidation of the Company shall comply with statutory regulations and any others which are additional but not contradictory thereto agreed by the General Meeting which adopts the resolution to wind up the Company. ARTICLE 29 - ARBITRATION Any doubt, query or dispute arising in the interpretation or application of these Articles between shareholder among themselves or with the Company or Company bodies, except where otherwise provided by law, shall be resolved in the area of the registered office, by arbitrators appointed as provided in the current Private Arbitration Act, and all shareholders, the Company and its bodies shall be bound by the arbitration ruling. EX-99 37 0037.txt CERTIFICATE OF INCORPORATION ASCOY CERTIFICATE OF INCORPORATION WITH RESPECT TO PARQUE EOLICO DE ASCOY, S.A. THE UNDERDESIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER OVIEDO'S BAR ASSOCIATION, DECLARES THAT: 1.- PARQUE EOLICO DE ASCOY, S.A.,HEREINAFTER REFERRED TO AS: "THE COMPANY"-IS A COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT CALLE RECTOR LOSAU 16, 6(0) OF MURCIA, SPAIN, AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF MURCIA, UNDER NUMBER MU 27.934, PROVIDED OF FISCAL IDENTITY NUMBER A-30589857. 2.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE MOST RECENTLY BEEN AMENDED BY DEED EXECUTED AFTER CINERGY'S ENTRANCE. 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 WIND FARMS. 4.- THE COMPANY CAN GIVE SECURITIES FOR DEBTS OF GROUP-COMPANIES AND OF ITS SHAREHOLDERS. 5.- THE COMPANY CAN HOLD SHARES/SHARES 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) THREE OTHER MEMBERS APPOINTED BY ELECDEY. (C) ONE MEMBER APPOINTED BY INSTITUTO PARA LA DIVERSIFICACION Y AHORRO DE LA ENERGIA (EN ADELANTE I D A E) (D) ONE MEMBER APPOINTED BY CAJA DE CATALUNA, S.A SIGNED AT MADRID ON MARCH 29, 1999 FDO. CESAR RODRIGUEZ FDO. FRANCISCO RAUSELL SOLARI EX-99 38 0038.txt ARTICLES OF ASSOCIATION OF PARQUE EOLICO DE ASCOY ARTICLES OF ASSOCIATION OF PARQUE EOLICO DE ASCOY, S A ARTICLE 1 The purpose of these Articles of Association is to set out how the mercantile company, called PARQUE EOLICO DE ASCOY, S.A., constituted as a public limited company, will operate. ARTICLE 2 The object of the company comprises the construction and subsequent operation, together with the sale of electricity that has been produced, of electricity plants using wind resources, specifically that of Parque Eolico de Ascoy en Cieza (Murcia). ARTICLE 3 The registered office is situated in Murcia, calle Rector Lostau n degree 16, 6 degree, which will also be the administrative centre of the company. ARTICLE 4 The company may change its registered office in accordance with the following conditions: A) If the company changes its registered address within the same municipal area, a resolution of the Shareholders' General Meeting will not be needed, and therefore it may be decided or agreed by the company's Board of Directors, in accordance with the provisions set out in Articles 149 and 150 of the Companies Act, with reference to Article 163 and other relevant Articles of the Mercantile Register Regulations. B) In complying with the provisions set out in Article 150 of the Companies Act regulated by the royal decree law 1564/1989 of 22nd December which in turn is governed by the Mercantile Register Regulations approved by the Royal Decree Law 1784/1996 of 19th July the Board of Directors will have all the necessary powers to carry out the procedures for giving notice of any proposed move of the registered office to another municipal area. ARTICLE 5 The company is constituted for an indefinite period. A majority vote of shareholders in a General Meeting will be sufficient to wind up the company, as long as all the statutory and legal requirements have been complied with. ARTICLE 6 The company shall commence trading on the day that the deed of incorporation is granted. TITLE II SHARE CAPITAL ARTICLE 7 The share capital is fixed at Ptas. 215,000,000 (two hundred and fifteen million pesetas) divided into 43,000 (forty three thousand) ordinary shares, of a single series, with a nominal value of Ptas. 5,000 (five thousand pesetas) each, numbered consecutively from 1 to 43,000, both inclusive. The share capital is fully subscribed, and fifty per cent paid up. The uncalled amounts will be paid in cash, by payment into a current bank account opened in the name of the company at the time or date set by the Board of Directors, within a maximum period of five years following the date of the deed of incorporation. ARTICLE 8 Shares will be represented by share certificates. The creation and issue of multiple share certificates is allowed. The certificates will be issued from counterfoil books and each one will have, as a minimum, those details set out in Article 53 of the Companies Act and will be signed by a legal representative or designated member of the Board of Directors of the company whose signature may be reproduced by mechanical means, in which case an authorised Notary will certify and so minute that the signatures reproduced mechanically are the same as those signed before him. This Minute shall be inscribed in the Mercantile Register before the certificates are circulated. ARTICLE 9 The company shall keep at its registered office the Shareholders' Register in which will be recorded the successive transfers of shares, stating the name, surname, title or company, if any, nationality and address of the successive holders, as well as the levy of transfer charges and other taxes upon them. Any shareholder that so requests shall be able to examine the Shareholders' Register at the registered office. The company will only be able to amend the entries that it considers false or inaccurate when the interested parties have been notified of the company's intention to proceed in this way and have not indicated in writing their disagreement during the 30 days following notification. The company shall only recognise as shareholders those who are recorded in this Register. ARTICLE 10 The shares are transferable by any means recognised in law. In every case, the provisions of the law as to whether or not the definitive certificates have been issued and in accordance with the character of the shares must be taken into account. Without prejudice to that set out in the previous paragraph, the transfer of shares to third parties that are not companies belonging to the same group as the shareholder transferring the shares will be subject to the following rules. The shareholder who proposes to dispose of all or some of his shares to another shareholder or a third party, must advise the President of the Board of Directors who, subsequently, will advise the other members of the Board, attaching a document in which is stated the purchase offer received from a third party, stating the number of shares, purchase price and name of purchaser, and this information, within a period of ten calendar days, must be communicated to each and every one of the other shareholders at the address that is shown for each of them in the Shareholders' Register. Within thirty calendar days following the date of the said communication, the shareholders may opt for the acquisition of the shares and if more than one of them wishes to make use of this right, the said shares will be apportioned between them pro-rata in accordance with the shares that they hold. When the above period has ended, the company may opt, within a further period of twenty calendar days starting from the end of the previous period, between allowing the projected disposal or acquisition of the shares for itself, in the normal legal manner. If this last period ends without, either on behalf of the shareholders or of the company, having made use of the preferential right of purchase, the shareholder will be free to dispose of his shares to the person and in the conditions that he advised to the management, provided that the disposal takes place in the two months following the end of the last period indicated, and, if this should not be the case, the offer process will have to be repeated. In any event, if two months have passed since the request for authorisation to transfer was presented and the company has not responded, the said authorisation by default will be deemed to have been granted. In exercising this right of preferential purchase, the purchase price will be that offered by the interested third party. The shareholder that has disposed of the shares must vouch for the price obtained per share by delivering to the President of the Board a copy of the public document that formalises the transfer. The transfers carried out other than in accordance with the provisions of this Article will not be recognised by the company. Where a shareholder transferor is being wound up due to a merger situation, or when the transfer arises as a consequence of the company being dissolved for legal reasons, the same will also be excluded from the provisions of this agreement The transfer of shares are excluded from the provisions of this Article when they are made in favour of any company who has control of the shareholder holding the share certificates being transferred or which company is in turn controlled by the said shareholder or whoever has the controlling interest. For the purposes of the previous paragraph, it is understood that control exists when the controlling shareholder possesses more than 50 per cent of the controlled company or has the capacity to nominate the majority of the members which constitute the Board of Directors. TITLE III MANAGEMENT BODIES OF THE COMPANY ARTICLE 11 The daily activities of the company will be regulated and managed by the duly convened General Shareholders' Meeting and by the management body. ARTICLE 12 The company will be regulated and managed: a) by the General Shareholders' Meeting b) by the Board of Directors. GENERAL SHAREHOLDERS' MEETING ARTICLE 13 The General Meetings shall be ordinary or extraordinary, and shall be convened by the directors of the company. ARTICLE 14 The Ordinary General Meeting, previously convened for this purpose, must take place during the first six months of each year to review the company's operations, to approve if appropriate the Accounts of the previous year and to decide upon the statement of the results. Any other matter that may be of interest in the opinion of the Board of Directors of the company may also be included in the Agenda. ARTICLE 15 All meetings that do not fall within the definition in the above Article will be deemed to be Extraordinary General Meetings. ARTICLE 16 In each case, the Extraordinary General Meeting shall be convened by the Board of Directors of the company, whenever it is deemed to be in the interests of the company, or when it is requested by a number of shareholders representing, at least, five per cent of the share capital. ARTICLE 17 The General Meeting is deemed to be convened, and will be validly constituted to deal with any matter, whenever there is present all the paid-up share capital and those present accept unanimously that the meeting be held. This class of meeting will be called an Extraordinary General and Universal Meeting of shareholders. ARTICLE 18 All General Meetings, except those described in Article 17 above, must be convened by a public announcement in the official Gazette of the Mercantile Register, and in one of the province's newspapers with a high circulation rate, as well as to those members who possess at least 10 per cent of the share capital by means of written communication with acknowledgement of receipt (registered letter, fax with acknowledgement of receipt etc) that will be sent at least fifteen days before the date fixed for the said meeting. The announcement and the written notice shall state the date of the meeting at the first call and all the matters to be dealt with; it may also state, if appropriate, the date on which the meeting will be reconvened at the second calling. If the meeting is to deal with matters relating to the merger or sub-division of the company, the special periods of notice indicated in law for these matters must be taken into account. ARTICLE 19 The General Meeting, whether Ordinary or Extraordinary, will be validly constituted at the first calling when the shareholders present or represented possess at least seventy five per cent of the subscribed share capital with the right to vote. At the second calling the meeting will be validly constituted when there are present at the said meeting at least fifty per cent of the subscribed share capital with the right to vote. ARTICLE 20 In order for the Ordinary or Extraordinary General Meeting to validly resolve the issue of debentures, the increase or decrease of capital, the transformation, merger or sub-division of the company or any other modification to the Articles of Association, the said meeting will need at the first calling the approval of the assembled shareholders, present or represented, who possess at least eighty five per cent of the subscribed share capital with the right to vote. At the second calling the approval of two-thirds of the subscribed share capital will be required. ARTICLE 21 The holders of shares whose shareholding is recorded in the Shareholders' Register five days prior to the proposed meeting date, and the holders of shares that have demonstrated by means of a public document their purchase from someone who appears in the Register as a shareholder, are able to attend the meeting. It is understood in the latter instance that the public document will include a request to the Board of Directors for the said shareholding to be recorded in the Register. All shareholders with the right to attend the convened General Meetings may be represented by another person who may not be a shareholder, the said representation being in accordance with the provisions of Article 106 of the Public Companies Act. Attendance in person at the meeting by the shareholder revokes any other representation previously granted. ARTICLE 22 The President and Secretary of the Board of Directors will act as such at the meetings. The President may authorise the attendance at the meetings of any person he deems appropriate. Only a decision or agreement of the majority of the meeting will invalidate the said decision. The shareholders may request in writing, prior to the Meeting, or verbally during it, any report or information they deem appropriate concerning the matters comprising the agenda. The directors shall be obliged to provide the same, except in those cases where, in the judgement of the President, the publicity of the requested data would prejudice the company's interests, but without prejudice to the exception set out in Article 112.2 of the Companies Act. The Minutes of the Meeting may be approved by the Meeting itself at its conclusion, failing which, within a period of fifteen days by the President and two referees, one representing the majority and the other the minority. The Minutes, approved by whichever of the aforementioned means will have executive force from the date of their approval. The President or the Secretary may require the presence of a Notary for the purpose of drawing up the Minutes of the Meeting, and will be obliged to carry out this requirement whenever, five days prior to that fixed for the Meeting, it is requested by shareholders that represent at least one per cent of the share capital. Once notarised, the Minutes will be considered as the Minutes of the Meeting. In the General Meetings the resolutions will be adopted by a majority, except in those matters for which the legal or statutory provisions require a reinforced majority. A reinforced majority of two thirds of the share capital is required for: - - Agreement to carry out activities complementary to the company's objects, whether carried out directly or indirectly - - Increase or reduction in share capital - - A proposed merger - - A reinforced majority of eighty five per cent of the share capital is necessary for deciding the following matters: - - Modifications to the preferential rights of purchase - - The purchase of its own shares by the company - - The transformation, winding up (with or without liquidation), sub division; naming and removal of liquidators and the approval of the final liquidation Balance Sheet - - Modification of the company's objects that implies carrying out activities not directly related to the production of electricity by means of wind - - Modifications to the characteristics of the management body and the number of directors on the Board of Directors - - Modifications to the procedure for transfer of shares - - Modifications to the procedures for reinforced majorities set out in these Articles of Association THE BOARD OF DIRECTORS ARTICLE 23 The Board of Directors is responsible for representing the company in legal and other matters. ARTICLE 24 The Board of Directors, as the body that represents the company, will comprise a minimum of six directors and a maximum of 11. ARTICLE 25 A member of the Board of Directors must be appointed by the Shareholders' General Meeting for a period of five years, and may be re-elected one or more times for periods of the same maximum duration, without prejudice to the provisions relating to the removal of a director set out in Article 131 of the Companies Act. A member of the Board of Directors need not be a shareholder of the company. The office of director will not be remunerated, nevertheless there will be established, to cover expenses, the right to receive an allowance paid on a daily basis to each director which amount will be fixed annually by the General Meeting. Those persons that infringe the rules of incompatibility that are set out in law 12/1995 of 11th May and other similar and complementary provisions may not be members of the Board of Directors of the company. In such event, the said directors shall be removed immediately, at the request of any shareholder, without prejudice to the liabilities which they may incur for their illegal conduct, in accordance with Article 133 of the Companies Act. If during the period for which they are appointed members of the Board of Directors a vacancy should arise, the Board, in accordance with that set out in Article 138 of the Companies Act, may delegate the person or persons to occupy the office of director until the next meeting of the General Meeting. ARTICLE 26 The Board of Directors will meet whenever requested by one of its members or by its President. Each meeting shall be convened through written communication with acknowledgement of receipt (registered letter, fax with acknowledgement of receipt) sent to each director, at least, seven days before the date fixed for the meeting. The said notice shall include the Agenda for the said meeting and any documentation relating thereto. The Board of Directors shall be deemed validly constituted when there are present or represented at the meeting, one half plus one of its members. The resolutions will be adopted by an absolute majority of the directors present at the meeting that has been convened by the President or whoever carries out his function. Voting in writing and without meeting will only be allowed when no director opposes this procedure. The discussions and subsequent resolutions of the Board will be entered into a Minute Book that will be signed by the President and the Secretary. The Board of Directors will appoint the President and Secretary. In addition it may appoint, should it be considered necessary, a Vice-President and a Vice-Secretary, always providing that the General Meeting at the time of appointing the director has not already made these appointments. The Secretary and if appropriate the Vice-Secretary, may or may not be directors, and in the case they will have a voice but no vote. The secretary will be empowered to certify and register all classes of company resolutions. ARTICLE 27 The Board of Directors will have all the powers and attributes that by law are not reserved exclusively for the General Meeting. The following list, which sets out the powers ascribed to the Board of Directors, is meant neither to be exhaustive nor to replace those powers conferred on it by law: - - To manage the assets of the company, of any class, to pursue and conclude any type of action against any person or body or organism of the State, autonomous community, province or municipality, as well as international organisations, of the European Community or other, before tribunals, courts and authorities of whatever class and hierarchy, and to act as legal representative of the company. - - To receive and pay amounts that are due the company for whatever title or cause, including payment warrants from the state, autonomous communities, province or municipality, in whichever of its offices, including tax offices, signing the receipts and documents that may be required. - - To represent the company in any class of contract or operation, with specific powers to buy, sell, promote, cede, or lease; to lease industrial equipment and machinery or to lease out those owned by the company and in general to carry out, in relation to the assets of the company, all classes of acts and contracts of management and ownership. - - To sign, endorse, negotiate, accept, collect, pay and note bills of exchange, cheques and other credit and transfer documents; to open, maintain and cancel current accounts, of cash or credit, with or without guarantees of cash or other assets required for carrying out the operations of the company; to constitute, cancel and withdraw provisional and definitive bonds, as well as deposits of any class or nature, all of which in whatever bank, savings bank or similar institution, including the Bank of Spain and its branches. - - To hire and dismiss personnel, fixing their salary and other emoluments; to draw up documents for labour disputes before employment tribunals or whatever other entity or organisation, with specific powers to resolve legal disputes and ratify all those actions that may be necessary. - - To take part in whatever type of auctions and tenders that may be convened by individuals or organisations or branches of the State, autonomous communities, provinces, municipalities or any other. - - To resolve, transfer, commit, initiate, maintain and terminate the documents, business or management that may be in the interests of the company, and carry out any action deemed appropriate for the company. - - To grant and revoke powers of any type, including those of litigation and defence, with ordinary and extraordinary powers that are considered appropriate, as well as appealing against verdicts, without any limitation. - - To grant and sign, with regard to everything referred to above, the necessary or appropriate public and private documents, agreeing clauses within them, without any limitation. An absolute majority of the directors present at a meeting is required to make decisions. Without prejudice to that set out in Article 26, in the case of deadlock the President shall have the casting vote, except regarding the following matters that will require a favourable vote of five of the members of the Board of Directors: - - The permanent delegation of powers to one member of the Board of Directors. - - To spend or commit in any form expenditure that is not specifically incorporated in the agreed annual budget (except for expenses strictly necessary and urgent for repair, that may be agreed by the Board by an absolute majority or, if it is the case and always subject to ratification, by the Managing Director). This includes granting any type of guarantees or bond in favour of another person or to deal (to purchase, sell, charge, or whatever other type of legal business) in shares or shares of companies that are quoted or not quoted on the Stock Exchange, equally for shares already integrated into the company's assets as well as new investments. As an exception, the approval of the annual budget of the company and the way in which it is implemented will require the favourable vote of four members of the Board. The Board of Directors may only delegate its powers in respect of any matter that requires a reinforced majority with the unanimous agreement of its members. TITLE IV COMPANY YEAR ARTICLE 28 The company year will coincide with the calendar year, and will close each year on 31st December. As an exception, the first company year will close on the date indicated and will begin on the date on which the company starts to trade, as determined in accordance with that stated by the law or these Articles of Association. ARTICLE 29 The Board of Directors, within a maximum period of three months starting from the closing date of the company's year, is obliged to draw up a report on its management, the Annual Accounts and the proposal for the statement and distributions of profits, if any, to the shareholders. The Annual Accounts will comprise the balance sheet, profit and loss account and the notes thereto. These documents, together with the management report, will be drawn up with the precision and clarity that the law requires, and must be signed by all the directors of the company. Should the signature of any of the directors be omitted, it will be so stated on each of the documents from which it is omitted, with a specific statement as to the reason for its omission. The General Meeting will adopt the Annual Accounts. Following notice of the General Meeting, any shareholder will be able to obtain from the company, immediately and at no charge, the documents that must be submitted for the approval of the meeting, and the report of the auditors, if any. The notice convening the meeting must specifically state this right. ARTICLE 30 The General Meeting will determine the statement of the results of the year in accordance with the adopted balance sheet. TITLE V WINDING UP AND LIQUIDATION ARTICLE 31 The company will be wound up for reasons set out by law. In the event of the company being wound up, its liquidation will become the responsibility of the Board of Directors who, acting as liquidators, will carry out the liquidation and division in accordance with that which has been agreed by the General Meeting concerning this matter, and the current legal and statutory provisions. The number of liquidators must always be uneven, therefore, in the event that the number of members of the Board of Directors be even, the General Meeting that determines the winding up and liquidation will appoint, by a majority, another person as liquidator, so that the total number of them becomes uneven. Proposals for the merger or sub-division of the company are excluded and deemed exempt from the liquidation process. ARTICLE 32 In accordance with the provisions of the law, once all the creditors have been paid and the amount of their claims against the company extinguished and having appropriately covered those not due, the company's remaining net assets will be divided between the shareholders in proportion to the value of their nominal shareholdings. If all the shares have not been paid up in the same proportion, it will be distributed as set out in Article 277 of the Companies Act. TITLE VII APPLICATION OF THE LAW ARTICLE 33 All matters that are not provided for in these Articles of Association will require the observance and application of the provisions of the law regulated by the Companies Act, 19/1989 of 25th July and complementary legislation. EX-99 39 0039.txt CERTIFICATE OF INCORPORATION OF VENTOABREGO CERTIFICATE OF INCORPORATION WITH RESPECT TO VENTOABREGO, S.L. THE UNDERSIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER SPANISH BAR ASSOCIATION, DECLARES THAT: 1.- VENTOABREGO, S.L. HEREINAFTER REFERRED TO AS THE "COMPANY" IS A CLOSED COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT CARROCEIROS, PARROQUIA AS NEVES, ORTIGUEIRA, CORUNA, GALICIA AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF CORUNA ON PAGE C-23.642 OF VOLUME 2289 (GENERAL ARCHIVE SECTION), FOLIO 207. 2.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE NOT BEEN AMENDED SINCE THE INCORPORATION OF THE COMPANY, EXECUTED BEFORE D. EDUARDO MARTIN ALCALDE, CIVIL LAW NOTARY, OFFICIATING IN ALCOBENDAS - MADRID, ON 21 DECEMBER 1999. 3.- ACCORDING TO ARTICLE 4 OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE PURPOSE OF THE COMPANY IS THE CONSTRUCTION, INSTALLATION AND DEVELOPMENT OF ELECTRICAL ENERGY PRODUCTION SITES, ESPECIALLY THROUGH THE EXPLOITATION OF WIND FARMS. THE LISTED ACTIVITIES CAN BE DEVELOPED INDIRECTLY, TOTALLY OR PARTIALLY, THROUGH 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 PARTICIPATE IN, MANAGE AND FINANCE THESE ENTERPRISES. 6.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE DIRECTORS OF THE COMPANY ARE: (A) DEREK JOHN SPENCER, BORN ON 29 MAY 1941, MARRIED, OF BRITISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. (B) MARIA GARCIA ARGUELLES, BORN ON 21 FEBRUARY 1970, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. (C) FERNANDO MOLINA MARTINEZ, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 19 CALLE NAVARRA, AGUSTIN DE GUADALIX, MADRID. (D) FERNANDO MOLINA RODRIGUEZ, MARRIED, OF SPANISH NATIONALITY, RESIDING AT 82 CALLE EDUARDO PONDAL, PONTEVEDRA. SIGNED IN MADRID ON 24 APRIL 2000 FDO. CESAR RODRIGUEZ GONZALEZ OVIEDO BAR ASSOCIATION (SPAIN), N(0) 3.133 EX-99 40 0040.txt ARTICLES OF ASSOCIATION OF VENTOABREGO ARTICLES OF ASSOCIATION OF THE MERCANTILE COMPANY VENTOABREGO, SOCIEDAD LIMITADA PART I - NAME, DURATION, ADDRESS, OBJECT ARTICLE 1 - NAME A Limited Liability Company Tto be known as VENTOABREGO, SL is hereby set up, governed by these Articles, and, where no provision is contained therein, by the Limited Liability Company Act, the Companies Register Regulations and other applicable provisions. ARTICLE 2 - LIFE OF THE COMPANY The Company is set up for an unrestricted period. The company shall commence trading on the date of execution of its incorporation documents. ARTICLE 3 - REGISTERED OFFICE The Company's registered office is in Carroceiros, Parroquia As Neves, Ortigueira, Coruna, Galicia. The Company may set up branches, agencies or offices in Spain or abroad, upon resolution of the Administrative Body, which may also resolve to move the registered office within the said municipal boundaries and to move branches, agencies or offices. ARTICLE 4 - OBJECT The object of the Company is: (a) To operate on the electricity market in all its processes, from production and co-generation to sale and use of electricity, using all types of supply, including wind power, and taking any necessary or supplementary action for the purpose, complying at all times with current legislation in the trading area. Purchase, lease and concession of business franchises. (b) Research, development and use of new technology. (c) Real estate management, development and operation. The Company may carry out the activities listed directly or indirectly, in whole or in part, through shareholdings in other companies with the same or similar objects. PART II - REGISTERED CAPITAL AND SHARES ARTICLE 5 - REGISTERED CAPITAL The registered capital is THREE THOUSAND AND FIFTY EUROS, divided into FIVE THOUSAND SHARES, cumulative and indivisible, numbered from ONE to FIVE THOUSAND inclusive, with a par value of 0.61 Euros each. Shares forming the said registered capital are fully subscribed and paid up. ARTICLE 6 - SHARE OPTION In capital increases where new shares are created, each shareholder may acquire a number of shares proportionate to the par value of his current holding. The option shall be exercised within the period set when adopting the increase resolution, which may not be less than one month from publication of the offer of the new shares for sale in the Official Bulletin of the Companies Register. The Administrative Body may replace publication of the notice by a letter to each shareholder, and the deadline for acquisition of the new shares shall run from despatch of the said letter. PART III - COMPANY SHARES ARTICLE 7 - COMPANY SHARE SYSTEM Shares may be transferred by all lawful methods, but shall always be officially registered. The foregoing notwithstanding, transfer of shares to non-shareholders is subject to the following rules: The shareholder wishing to transfer all or part of his shares shall so state in a registered letter with receipt, which may be preceded by a fax, to the Administrative Body, stating the number of shares which he wishes to sell, the name and personal details of the initially selected purchaser and the sale price. Transfer shall be subject to Company approval. The Administrative Body shall convene a Shareholders' General Meeting for the purpose to be held within a maximum of 45 days, to resolve as to consent to the transfer of shares to non-shareholders. Shareholders wishing to purchase shall so state within 30 days of the date of receipt of notice from the Administrative Body by registered letter with receipt, or by fax to the Administrative Body, which shall communicate these replies immediately to the seller. If more than one shareholder is interested in purchasing the shares offered for sale, allocation between them shall be proportionate to the number of shares held by each. If shareholders wishing to purchase the shares offered disagree as to the price initially set by the seller, the final sale price of the shares shall be set by the Company auditor or, where appropriate, the Auditor appointed by the Companies Register for the Company's registered office, at the request of an interested party, in compliance with the provisions of Article 29 d. of the Limited Liability Companies Act. If shareholders do not wish to purchase all the shares offered, the seller may proceed with the sale of shares under the agreed conditions and within a maximum period of thirty calendar days from the date on which the Administrative Body informed him of the negative reply of the remaining shareholders. Otherwise his right to carry out the proposed transfer shall lapse and, to put it into effect, he shall recommence the procedure set out in this article. The proposed transfer system under this article shall apply when acquisition of shares has arisen as a consequence of judicial or administrative enforcement proceedings. Restrictions provided in the article shall not apply to acquisition through inheritance, provided that those acquiring them can prove their status as legal heirs of the deceased shareholder. In other cases of acquisition as a result of death the transfer system set out in the previous paragraph hereof shall apply. ARTICLE 8 - CORRESPONDENCE AND SHARE REGISTER The Company shall keep a Share Register containing the personal details of shareholders, shares held and any changes arising. Any shareholder may consult the Share Register, which shall be kept by and under the responsibility of the Administrative Body. Shareholders may obtain a certification of their shares as they appear in the Share Register. PART IV - GOVERNMENT AND ADMINISTRATION OF THE COMPANY ARTICLE 9 - COMPANY BODIES The Company bodies are the General Meeting, which is the supreme authority and at which a majority vote is taken in matters within its jurisdiction, and an Administrative Body responsible for management, administration and representation of the Company, with powers vested in it under the law and these Articles. CHAPTER ONE - THE GENERAL MEETING ARTICLE 10 The General Meeting is the supreme body of the Company and its duly adopted Resolutions shall be binding upon all shareholders, including absentees, abstainers and dissidents. ARTICLE 11 - CALLING The General Meeting shall be convened by the Administrative Body. At least fifteen days shall elapse between calling a General Meeting and its planned date. The calling notice shall be sent out in duplicate to all shareholders appearing the Share Register, to the address appearing therein, and one copy shall be returned signed by the addressee. If he refuses to sign the duplicate, the calling notice shall be served upon him through a notary at the address given. The calling notice shall state the company name, venue, date and time of the meeting, agenda and person or persons sending it out. ARTICLE 12 The Administrative Body shall call a General Meeting as and when it sees fit and at the request of a number of shareholders representing at least 5% of the company capital. In the latter case the meeting shall be called within the month following the date on which notice was served through notarial channels upon the Administrative Body. If the meeting is not called as provided in the previous paragraph, shareholders may appeal to the Judge of First Instance of the area in which the Company is situate, to call the meeting and appoint the [Chairman] and Secretary of the Meeting to be held. ARTICLE 13 A General Meeting shall be held at least once during the first six months of each financial year to approve company management and, if appropriate, adopt the accounts for the previous financial year and resolve as to allocation of results. The Meeting may discuss and agree upon any matter submitted to it provided always that it is validly constituted and within its statutory powers, taking into account the matter to be discussed. ARTICLE 14 - ADOPTION OF RESOLUTIONS Company Resolutions shall adopted by majority vote validly cast provided always that it represents at least 5% of the voting capital. However, Resolutions on authorisation of share transfer to non-shareholders, capital increase or decrease, waiver of option rights in capital increases, changes in the method of organising the Company administration within the limits of these Articles, restructuring, merger, demerger, expansion or winding up of the Company and, in general, any amendment of the Articles of Association, the favourable vote of shareholders representing over 70% of the voting capital is required. The Meeting shall be quorate if attended by a number of shareholders enabling resolutions to be adopted by the majority required for the matter to be discussed. ARTICLE 15 - ATTENDANCE AT GENERAL MEETINGS All shareholders may attend General Meetings. The Administrative Body shall attend General Meetings. They may be attended by Directors, Managers, Attorneys, Technical Advisers and any other persons who the Chairman of the Meeting considers should attend the Meeting in the interest of the correct running of Company affairs. The Chairman of the Meeting may, in principle, permit the attendance of whomsoever he wishes. The Meeting may revoke such authorisation. ARTICLE 16 - UNIVERSAL MEETING A General Meeting shall be validly constituted to discuss any business without prior notice provided always that the total company capital is present or represented and those present agree unanimously to hold the Meeting and on its Agenda. A Universal Meeting may be held anywhere in the country. ARTICLE 17 - ORGANISATION OF THE MEETING General Meetings shall be held in the area of the Company's registered office, agency or branch. Unanimous meetings may be held wherever shareholders representing the entire Company capital are present. The Meeting shall be chaired by a member of the Administrative Body elected by shareholders present, except when the Administrative Body of the Company is a Board, in which case its Chairman shall chair the Meeting or, in his absence, its Vice-Chairman. If neither of the aforementioned are present, the person elected on each occasion by the majority of shareholders present at the Meeting shall chair it. A member of the Administrative Body specially elected for the purpose by Shareholders present shall act as Secretary unless the administrative Body of the Company is a Board, in which case the Secretary of the Board shall act as Secretary of the Meeting or, in his absence, the Deputy Secretary. If neither of the aforementioned are present the person elected on each occasion by a majority of the shareholders present at the meeting shall act as Secretary. It shall be encumbent on the Chairman of the Meeting to direct the deliberations, to give the floor to speakers, and to determine the duration of successive contributions. ARTICLE 18 - MINUTES AND CERTIFICATION OF GENERAL MEETINGS Minutes of each General Meeting shall be entered in the Book kept for the purpose, together with any resolution adopted and signed by the Chairman and Secretary. The Minutes may be approved by the General Meeting itself or, otherwise, within 15 days by the Chairman and the scrutinisers, one representing the majority and the other the minority. Resolutions of General Meetings may be produced whenever necessary by certification under current legislation. Public registration of resolutions both of the Meeting and the Administrative Body shall be carried out by authorised persons. Any director may also do so without special appointment. CHAPTER TWO: THE ADMINISTRATIVE BODY AND REPRESENTATION ARTICLE 19 - THE ADMINISTRATIVE BODY AND ITS COMPOSITION Company administration may be entrusted to a sole director, to two directors acting in association or jointly and severally or to a Board, at the discretion of the General Meeting without amending the Articles of Association. If the General Meetings opts for the Board, it shall comprise a minimum of three and a maximum of seven Directors. Appointment of such persons, who must be shareholders, is the province of the General Meeting. Appointment of Directors shall take effect as of their acceptance. Board Meetings shall be called by the Chairman when he sees fit, or at the request of a least two Directors, who shall request a Meeting in writing or by fax, with five days notice, stating the matters to be discussed. A period of at least fifteen days must elapse between the date of the calling notice and that of the meeting. The calling notice shall include the Agenda, stating matters to be discussed and enclosing copy of any document to be tabled or submitted to the Board for approval. The Board shall be considered quorate when the majority of its members are present or represented by a proxy. Proxies shall be appointed by letter to the Chairman. Resolutions shall be adopted by the absolute majority of those present at the Meeting. Permanent delegation of some or all of its powers which may be so delegated to an Executive Committee or various appointed directors and the appointment of administrators to assume such office shall require the favourable vote of two thirds of the members of the Board and shall not take effect until it has been registered in the Companies Register. A ballot without a meeting shall be valid provided that it is not opposed by any director. Discussions and Resolutions of the Board shall be entered in a Minute Book and signed by the Chairman and Secretary. The Board shall elect from among its members a Chairman, Secretary and up to two Deputy Secretaries. The Secretary and the Deputy Secretaries need not be directors, in which case they may speak but not vote. The Administrative Body, in whatever form, shall direct, administer and represent the Company within the confines of its object, and may discuss, resolve and operate completely freely in all matters not reserved for the General Meeting under the Law or these Articles, without prejudice to the appointment of any person by the Administration itself. ARTICLE 20 - TERM OF OFFICE Directors' terms of office are unrestricted. Votes representing over one half of the Company capital will be required to remove a director from office. Persons precluded under Act 12/1995 of 11 May or other statutorily disqualified persons may not hold office as Directors. ARTICLE 21 - REMUNERATION OF DIRECTORS The office of Director carries no remuneration. SECTION IV - BALANCE SHEET AND DISTRIBUTION OF PROFIT ARTICLE 22 The financial year shall commence on 1 January and end on 31 December of each year. Exceptionally, the first year shall commence on the date of registration of the Company. ARTICLE 23 The Administrative Body, as provided in the Limited Liability Companies Act and other applicable commercial legislation, shall prepare annual accounts, a report on administration and propose the allocation of results and, where necessary, consolidated accounts and reports for submission to the General Meeting, when they have been checked and reviewed by the Auditors. ARTICLE 24 Any shareholder may, within 15 days prior to a General Meeting held to rule as to the annual accounts, inspect the Company's annual accounts and position either personally or through an expert, taking such time as he sees fit for the purpose. ARTICLE 25 The Company's liquid profits shall be distributed as follows, in accordance with the approved balance sheet. (a) The necessary sum to cover statutory requirements or those of these Articles. (b) The remainder of the profits shall be distributed each year between the shareholders unless such distribution is outvoted by 85% of the registered capital. SECTION VI - WINDING UP AND LIQUIDATION ARTICLE 26 - WINDING UP The Company may be wound up on the grounds set out in the Limited Liability Companies Act. The General Meeting may be duly convened at any time decide to wind up and liquidate the Company. ARTICLE 27 - LIQUIDATORS The General Meeting which agrees the winding up of the Company shall also appoint liquidators who may be former members of the Administrative Body. The number of liquidators shall always be uneven. If the Meeting resolves on the appointment of the former Directors as liquidators and their number is even, the General Meeting shall decide which Director will not be appointed as liquidator. ARTICLE 28 - LIQUIDATION PROCEDURE Liquidation of the Company shall comply with statutory regulations and any others which are additional but not contradictory thereto agreed by the General Meeting which adopts the resolution to wind up the Company. ARTICLE 29 - ARBITRATION Any doubt, query or dispute arising in the interpretation or application of these Articles between shareholder among themselves or with the Company or Company bodies, except where otherwise provided by law, shall be resolved in the area of the registered office, by arbitrators appointed as provided in the current Private Arbitration Act, and all shareholders, the Company and its bodies shall be bound by the arbitration ruling. EX-99 41 0041.txt CERTIFICATE OF INCORPORATION NORTHEOLIC CERTIFICATE OF INCORPORATION WITH RESPECT TO NORTHEOLIC PICO GALLO, S.L. THE UNDERSIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER SPANISH BAR ASSOCIATION, DECLARES THAT: 1.- NORTHEOLIC PICO GALLO, S.L. HEREINAFTER REFERRED TO AS THE "COMPANY" IS A CLOSED COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT LA PLAZA, CARAVIA BAJA, ASTURIAS 33343 AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF ASTURIAS ON PAGE AS-21714 OF VOLUME 2680, BOOK 0, FOLIO 13, SECTION 8(A). 2.- EXCLUDING PROPER INCREASES IN SHARE CAPITAL, ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE NOT BEEN AMENDED SINCE THE INCORPORATION OF THE COMPANY, EXECUTED BEFORE D. LUIS ALFONSO TEJUCA PENDAS, CIVIL LAW NOTARY, OFFICIATING IN OVIEDO, ON 18 AUGUST 1999. 3.- ACCORDING TO ARTICLE 2 OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE PURPOSE OF THE COMPANY IS THE CONSTRUCTION, INSTALLATION AND DEVELOPMENT OF ELECTRICAL ENERGY PRODUCTION SITES, ESPECIALLY THROUGH THE EXPLOITATION OF WIND FARMS. THE LISTED ACTIVITIES CAN BE DEVELOPED INDIRECTLY, TOTALLY OR PARTIALLY, THROUGH 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 PARTICIPATE IN, MANAGE AND FINANCE THESE ENTERPRISES. 6.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE DIRECTORS OF THE COMPANY ARE: 1. ADRIAN PIERA JIMENEZ (PRESIDENT), MARRIED, OF SPANISH NATIONALITY, RESIDING AT CALLE GUECHO, 61 OF MADRID. 2. CINERGY GLOBAL POWER INC., A US COMPANY CONSTITUTED UNDER THE LAWS OF DELAWARE (USA), WITH DOMICILE IN WILMINGTON, NEW CASTLE COUNTY, DELAWARE (USA) AND INSCRIBED UNDER NUMBER 2791375-8100, DULY REPRESENTED BY DEREK JOHN SPENCER, BORN ON 29 MAY 1941, MARRIED, OF BRITISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. 3. NORTHEOLIC S.A., A SPANISH COMPANY WITH DOMICILE IN CARAVIA BAJA - ASTURIAS AND INSCRIBED IN THE MERCANTILE REGISTER OF ASTURIAS (C.I.F. A-33555020) REPRESENTED BY EDUARDO GOMEZ-ACEBO GULLON, DIVORCED, OF SPANISH NATIONALITY, RESIDING IN POZUELO DE ALARCON (MADRID). 4. CINERGY 2 BV, A DUTCH COMPANY WITH DOMICILE IN ROTTERDAM, THE NETHERLANDS AND INSCRIBED IN THE REGISTER OF THE CHAMBER OF COMMERCE OF AMSTERDAM UNDER NUMBER 33256762, REPRESENTED BY MARIA GARCIA ARGUELLES. SIGNED IN MADRID ON 24 APRIL 2000 FDO. CESAR RODRIGUEZ GONZALEZ OVIEDO BAR ASSOCIATION (SPAIN), N(0) 3.133 EX-99 42 0042.txt ARTICLES OF ASSOCIATION OF NORTHEOLIC ARTICLES OF ASSOCIATION OF THE MERCANTILE COMPANY "NORTHEOLIC PICO GALLO, SOCIEDED LIMITADA PART I - GENERAL PROVISIONS ARTICLE 1 - COMPANY NAME The name of the company is Northeolic Pico Gallo, SL. ARTICLE 2 - COMPANY OBJECTS 1. The objects for which the Company is established are the consultancy, development, building, operation and/or ownership of energy generating facilities and, in particular,aeolian energy, after complying with such special administrative formalities and requirements as may be legally imposed. 2. The activities which make up the company objects may be conducted by the company in whole or in part, directly or indirectly, in any of the ways allowed by law and, in particular, by way of ownership of shares or interests in companies with identical or similar purposes. ARTICLE 3 - DURATION OF THE COMPANY, CLOSING DATE OF THE FINANCIAL YEAR AND COMMENCEMENT OF TRADE 1. The duration of the Company is indefinite. 2. The closing date of the financial year shall be the 31st of December each year. 3. The Company shall commence its trade on the date the deed of execution is granted. ARTICLE 4 - REGISTERED OFFICE AND BRANCHES 1. The registered office of the Company will be Caravia Baja, La Plaza, 33343 Asturias. 2. The administrative body shall be competent to decide or pass a resolution to relocate the registered office within the same municipal district. 3. Similarly, the administrative body shall be competent to decide or pass a resolution to create, discontinue or transfer branches, within or off national territory. PART II - SHARE CAPITAL AND SHARES ARTICLE 5 - SHARE CAPITAL The share capital is FIVE HUNDRED THOUSAND (500,000) pesetas (3,005.6 Euros) and is divided into ONE THOUSAND (1,000) company shares of ONE THOUSAND (1,000) pesetas (6.010121 Euros) nominal value each, numbered consecutively 1 to 1,000 both inclusive, cumulative and indivisible, which may not be incorporated in negotiable securities nor called shares. The share capital is fully subscribed for and paid up. ARTICLE 6 - SCHEME OF TRANSFER OF COMPANY SHARES 1. The voluntary transfer of company shares by acts inter vivos is subject to the scheme provided below: Voluntary transfer by acts inter vivos between shareholders, as well as the transfer made to companies belonging to the same group as the transferor, shall be unrestricted, PROVIDED ALWAYS THAT said transfer is notified to the remainder of the shareholders within 14 days following the same. Members shall have a right of pre-emption in respect of the remainder of voluntary transfers by acts inter vivos. If there are several shareholders interested in acquiring, the shares shall be distributed between all of them in proportion to their interest in the share capital. A shareholder intending to transfer one or more company shares must give notice, by notarial channels, to the remainder of the shareholders of the written offer from the third party interested in acquiring the shares, with a minimum content (the number of shares he intends to transfer, the transferee's identity, the consideration and other terms of the transfer). Within 30 days of receiving said notice, the shareholders receiving said communication shall notify the shareholder intending to transfer of the exercise or otherwise of his right of pre-emption over all of the shares offered, the consideration being the one offered by the third party interested. If any of the shareholders does not exercise their right, the remainder of the shareholders shall acquire pro rata. After 30 days elapse without any notification on the part of the remainder of the shareholders receiving communication of intention to transfer, the shareholder may transfer the shares upon the terms communicated, that is to say at a price no lower or on better terms: having where appropriate to communicate immediately, as provided in this paragraph, the new conditions of transfer offered. The right to make the announced transfer shall lapse and the formalities provided in this article resume, in order to carry it out, in the event of sixty days elapsing from the new communication and the transfer to the shareholders or third party interested failing to materialise. 2. The scheme of compulsory transfer of company shares shall be as provided generally in the Limited Liability Companies Act. The company shall have a right of pre-emption of such company shares as are subject to auction or any other form of compulsory disposal. The purport of this right of pre-emption is as directed in the Limited Liability Companies Act and shall be exercisable by the Company only in the absence of the shareholders exercising their right, which they have been legally granted. 3. Similarly, the scheme of transfer mortis causa of company shares shall be as legally laid down. Surviving shareholders shall have a right of pre-emption of the deceased shareholder's shares, assessed at the actual value they had on the shareholder's date of death. The determination of the value, terms of exercise of the right of pre-emption and the form of payment shall be governed by statute. 4. Transfers made in breach of this article shall be ineffective against the company. PART III: COMPANY BODIES ARTICLE 7 - COMPANY BODIES The Company shall have a General Meeting and an administrative body. These bodies, insofar as these Statutes are silent, shall be governed by the Limited Liability Companies Act. CHAPTER 1. SHAREHOLDERS' GENERAL MEETING ARTICLE 8 - COMPETENCE OF THE GENERAL MEETING The Meeting is entitled to discuss and resolve, by such majority as is laid down by law or the statutes, matters within its competence directed by the Law and in these Statutes. The matters specified in article 16 are, inter alia, those reserved to the competence of the Meeting. ARTICLE 9 - NOTICE OF THE GENERAL MEETING 1. A General Meeting will have to be called by the administrative body and, where appropriate, by the company liquidators. 2. The General Meeting must be called by individual communication, which is to be delivered by registered post and with acknowledgement of receipt to such address as is contained on the Register of members. There must be at least an interval of a fortnight between the date the announcement has been delivered to the last of the shareholders and the date scheduled for the holding of the meeting. 3. The communication of the notice shall be signed by the Chairman of the Company's Board. ARTICLE 10 - VENUE The General Meeting shall be held at such place and address as is directed in the notice. If the notice does not expressly indicate the venue, the Meeting shall be deemed to have been called at the Registered Office. ARTICLE 11 - PLENARY MEETING 1. The General Meeting shall be quorate to transact any business, without the need for a prior call, provided all the share capital is present and represented and the attenders unanimously agree to hold the meeting and the agenda of the same. 2. The Plenary Meeting may be held at any place on national territory or abroad. ARTICLE 12 - ATTENDANCE AND REPRESENTATION 1. The General Meeting may be attended by the holders of one or more company shares who have entered them on the Register of members or have communicated to the company their acquisition before the meeting is held. 2. The shareholders may be represented at General Meetings by another shareholder, or such person as holds a general power conferred in a public document with sufficient powers for such representation. ARTICLE 13 - COMMITTEE OF THE GENERAL MEETING 1. Those appointed, at the start of the meeting, by shareholders attending shall be Chairman and Secretary of the General Meeting. 2. The Chairman of the General Meeting shall be assisted by the Secretary. The person appointed by the shareholders attending the start of the meeting shall be Secretary of the Meeting. 3. If the presence of a Notary has been requested, the latter shall form part of the Board of the General Meeting. ARTICLE 14 - ATTENDANCE LIST 1. Before embarking on the agenda, the Secretary of the General Meeting shall draw up a list of attenders, which shall contain the names of shareholders attending and the names of shareholders represented and their proxies, and shall include by number the relevant shares. 2. If the attendance list does not appear at the start of the minutes of the General Meeting, it shall be attached thereto by means of an annexe signed by the Secretary, with the Chairman's countersignature. ARTICLE 15 - THE GENERAL MEETING'S MODE OF DELIBERATION 1. Once the attendance list is prepared, the Chairman shall declare the General Meeting quorate, if appropriate, specifying whether it may embark on the consideration of all matters included on the agenda or, otherwise, on which the General Meeting may deliberate and resolve. 2. The Chairman shall refer to deliberation the business included on the agenda as appear therein. 3. Any person with right of attendance may join in the deliberation, at least once, in connection with each of the points on the agenda, even though the Chairman of the General Meeting may lay down the order of contributions and limit at any time the maximum duration of each of them. 4. Once the Chairman considers a matter sufficiently discussed, he shall put it to the vote. ARTICLE 16 - MODE OF ADOPTING RESOLUTIONS 1. Resolutions shall be adopted by a majority of validly cast votes, provided they represent one-third of votes corresponding to the shares into which the share capital is divided. Blank votes shall be discounted. 2. Removal of members of the Board shall require votes in favour of 85% of votes corresponding to the shares into which the share capital is divided. 3. Resolutions to expel shareholders and resolutions relating to authorisation for directors to engage on their own or on someone else's behalf in the same, similar or complementary kind of activity which makes up the corporate objects shall also require votes in favour of two-thirds of the votes corresponding to the shares into which the share capital is divided. 4. Notwithstanding the foregoing paragraphs, votes in favour of 85% of the votes corresponding to the shares into which the share capital is divided shall be required by: 1) resolutions to increase or reduce capital and any other alteration of the company statutes, including alteration of the company objects; 2) Company liquidation resolutions; 3) alteration of the class of the administrative body, and the number of its members; 4) resolutions on the acquisition, sale or redemption of treasury shares; 5) such resolutions as are appropriate in relation to the company's insolvency situations; 6) the decision not to distribute dividends when legally and contractually possible. Therefore, subject to resolution by votes against of 85% of the share capital, the net profits shall be distributed every year between the shareholders, always complying with the appropriations to be made previously in accordance with the law in force. 7) resolutions on the appointment and removal of auditors when appropriate, without prejudice to the statutory provisions, 8) approval of the annual accounts, 9) resolutions on the conversion, merger or de-merger of the company, removal of the right of priority in capital increases. 5. With respect to decisions on the company's net profits, it will be deemed that they are to be distributed, where appropriate, every year between shareholders, subject to resolution by votes against of 85% of the share capital, always in accordance with the approved balance sheet and always complying with the appropriations to be made previously, in accordance with the law in force. CHAPTER 2 - THE ADMINISTRATIVE BODY ARTICLE 17 - STRUCTURE OF ADMINISTRATIVE BODY 1. The company is to be administered, as decided by the General Meeting as provided in the Law by a Board of Directors, by 6 directors in number. 2. The authority to appoint directors is vested exclusively in the General Meeting. 3. Alternate directors may be appointed in the event of one or more of them ceasing for any reason. ARTICLE 18 - SUBJECTIVE CONDITIONS, UNPAID OFFICE, TERM OF OFFICE 1. Shareholders' status is not required to be appointed member of the administrative body. 2. Members of the administrative body shall exercise their office for an indefinite time. 3. The directorship shall be unpaid. ARTICLE 19 - POWER OF ADMINISTRATION 1. The representation of the company, in- and out-of-court, is vested in the administrative body and shall extend to all acts included in the corporate objects. 2. The administrative body has authority in respect of whatever matters refer to the company's management, representation and administration, including all type of acts of disposition. ARTICLE 20 - POWER OF REPRESENTATION The power of representation, in- and out-of-court, shall be vested in the administrative body in the manner laid down by the law. ARTICLE 21 - DUTIES OF THE BOARD OF DIRECTORS 1. The Board of Directors shall appoint its Chairman and, optionally, one or more Vice-Chairmen. If there are several Vice-Chairmen, each of the Vice-Chairmen shall be numbered. The priority of number shall be determined by the order in which the Vice-Chairman shall deputise for the Chairmen in the cases of absence, incapacity or vacancy. 2. The Board of Directors shall appoint one Secretary and, optionally, one Assistant Secretary, the appointment being able to fall to persons who are not directors, in which event they shall have the right to speak but not to vote. The Assistant Secretary shall deputise for the Secretary in cases of absence, incapacity or vacancy. ARTICLE 22 - NOTICE CONVENING THE BOARD OF DIRECTORS 1. The Board of Directors shall be called by the Chairman or, in the event of the latter's death, absence, incapacity or inability, by the Vice-Chairman, provided he considers this necessary or appropriate, a meeting having to be held at least once every three months. It will have to be called necessarily whenever requisitioned by no less than one member of the administrative board. In the event of fourteen calendar days having elapsed from the receiving of the requisition, without the Chairman having called the Board, the latter must be called by the member of the Board who requisitioned the Board Meeting. 2. The Notice will have to indicate the Agenda of the meeting. 3. The notice is to be forwarded by letter with acknowledgement of receipt to the address of each of the members of the Board which is contained in the company's records, a minimum of a fortnight in advance of the date scheduled for the meeting. No notice will be necessary, if all members of the Board of Directors have been called at the previous meeting. 4. The Board of Directors shall be deemed quorate without the need for notice if all of its members, present or represented, unanimously agree to hold the meeting. 5. A written poll outside a meeting shall be allowed only when no director objects to this procedure. ARTICLE 23 - VENUE OF THE BOARD MEETING The Board of Directors shall hold its meetings at the registered office, save where another venue is indicated in the notice. Notices indicating a place abroad shall only valid if no director objects thereto. ARTICLE 24 - CONSTITUTION OF THE BOARD OF DIRECTORS 1. The Board of Directors shall be validly constituted to discuss and resolve on any matter when the meeting is attended by three members, present or represented, of the same which had fixed the General Meeting at the time, although said number has not been covered in its entirety or even when vacancies have subsequently arisen. 2. Members of the Board of Directors may only appoint another member of the Board to represent them. 3. The representation will have to be granted by any written means and specifically for each meeting. ARTICLE 25 - AGENDA OF THE MEETING The Board of Directors may deliberate and adopt resolutions in matters within its competence, even when they do not appear on the Agenda of the notice. ARTICLE 26 - MODE OF DELIBERATING AND ADOPTING RESOLUTIONS OF THE BOARD OF DIRECTORS 1. The Chairman shall refer to deliberation matters on the Agenda, both if this appears in the notice, as if it is prepared at the start of the meeting. Any of the members of the Board shall, prior to the meeting or in the course thereof, have the right to refer to deliberation and voting any other matter in such order as is directed by the Chairman in his reasonable discretion. 2. Once the Chairman considers a matter sufficiently discussed, he shall put it to the vote, each member of the Board, present or represented, being entitled to one vote. 3. Resolutions shall be adopted by a straight majority of members of the Board who have attended personally or by proxy. 4. Notwithstanding the above, the adoption of resolutions relating to the matters set out below shall require the votes in favour of five out of the six members of the Board of Directors: 1) Raising new loans granting finance which is not necessary for the ordinary course of the company's business, 2) Varying contracts previously entered into by the company, 3) Giving guarantees or endorsements to the company or other parties. 4) Without prejudice to the foregoing paragraphs, the giving of mortgages or any other type of collateral or personal security, as well as the giving of any charge over the assets or income for any reason of the company. 5) Granting loans or advances to third parties, except such advance as it grants as a consequence of the ordinary course of its business 6) Contracting with any shareholder or with any shareholder's affiliated business 7) The disposal of any tangible asset of the company 8) Any contract which goes beyond the company's ordinary business 9) Both the commencement and the submission of an answer or defence to legal claims or by way of arbitration 10) The approval and alterations of budgets 11) Incurring any expense which goes beyond the budget, subject to cases of demonstrable urgency or by legal or contractual obligation validly contracted pursuant to these Statutes 12) The engagement of working staff 13) The acquisition or disposal of shares or interests in other businesses 14) Establishing long-term agreements which require periods of notice of no less than three months to terminate the agreement or which entail serious or unquantifiable risks on the date of completion of said agreements 15) The signing of contracts, the total consideration of which to the company exceeds the figure of 30,050.6 Euros (5,000,000 pesetas). ARTICLE 27 - DELEGATION OF POWERS 1. The Board of Directors may, permanently, delegate all or part of its powers to an Executive Board and to one or more Managing Directors, and determine the members of the Board itself who will be the regulars on the delegated body. The Board of Directors may not delegate its powers in any of the matters for which decision-making by qualified majority of five members of the Board is required. 2. The delegation of powers permanently and determination of members of the Board itself who have to hold such posts shall require, for their validity, votes in favour of two-thirds of numbers of members of the Board which, at the time, had fixed the General Meeting for the composition of this body, although said number is not covered in its entirety or even when vacancies have subsequently arisen. 3. Managing Directors shall be under an express duty to inform each of the Directors about the company's day-to-day management. PART IV: WINDING-UP AND LIQUIDATION OF THE COMPANY ARTICLE 28 - WINDING-UP AND LIQUIDATION OF THE COMPANY The company shall be wound up on the grounds and with the effects provided by statute. ARTICLE 29 - LIQUIDATORS Upon the company being wound up, all directors with a valid appointment and registered at the Mercantile Registry will automatically turn into liquidators, save when the company has appointed others at the time the winding-up is resolved. The liquidators shall act internally according to the regulations themselves of the structure which the administrative body has at the time. ARTICLE 30 - POWER TO REPRESENT THE WOUND-UP COMPANY If the company is wound up, the power of representation shall be vested in the liquidators jointly and severally, whatever has been the scheme of the power of representation vested in the administrative body. EX-99 43 0043.txt CERTIFICATE OF INC. DESARROLLOS EOLICO EL AGUILA CERTIFICATE OF INCORPORATION WITH RESPECT TO DESARROLLOS EOLICOS EL AGUILA, S.A. THE UNDERSIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER SPANISH BAR ASSOCIATION, DECLARES THAT: 1.- DESARROLLOS EOLICOS EL AGUILA, S.A. HEREINAFTER REFERRED TO AS THE "COMPANY" IS A CLOSED COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT ZARAGOZA (STREET: AVENIDA ACADEMIA GENERAL MILITAR; NUMBER 52) AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF ZARAGOZA ON PAGE Z-23482 OF VOLUME 2328, BOOK 0, FOLIO 199. 2.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE MOST RECENTLY BEEN AMENDED BY DEED AS PER THE SHAREHOLDERS MEETING AGREEMENTS OF 21 JUNE 1999, EXECUTED BEFORE D. FERNANDO USON VALERO, CIVIL LAW NOTARY, OFFICIATING IN ZARAGOZA, ON 27 SEPTEMBER 1999. 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 ARE THE CONSTRUCTION, INSTALLATION AND DEVELOPMENT OF WIND FARMS, INCLUDING THE NECESSARY ACQUISITION, SALE, ETC. OF REAL ESTATE. THE LISTED ACTIVITIES CAN BE DEVELOPED INDIRECTLY, TOTALLY OR PARTIALLY, THROUGH PARTICIPATION IN OTHER COMPANIES WITH ANALOGOUS OR IDENTICAL OBJECTS. 4.- THE COMPANY CAN GIVE SECURITIES FOR DEBTS OF GROUP-COMPANIES AND OF ITS SHAREHOLDERS. 5.- THE COMPANY CAN PARTICIPATE IN, MANAGE AND FINANCE THESE ENTERPRISES. 6.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE FOLLOWING PERSONS ARE DIRECTORS OF THE COMPANY: (A) FINANCIERA AGROGANADERA, S.A. ("FASA"), A SPANISH ENTITY INSCRIBED AT THE MERCANTILE REGISTER OF ZARAGOZA, PROVIDED WITH TAX NUMBER A-50720283, AND REPRESENTED BY D. SERGIO SAMPER RIVAS. (B) VALLE DEL EBRO INGENIERIA Y CONSULTORIA, S.L.,(VEINCO), A SPANISH ENTITY INSCRIBED AT THE MERCANTILE REGISTER OF ZARAGOZA, PROVIDED WITH TAX NUMBER B-50711233 AND REPRESENTED BY D. MANUEL VIDAL LIZANO. (C) CINERGY GLOBAL POWER, INC., COMPANY DULY CONSTITUTED IN THE STATE OF DELAWARE, USA UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, REPRESENTED BY D. FRANCISCO RAUSELL SOLARI. (D) CINERGY 2 BV, A DUTCH COMPANY WITH DOMICILE IN ROTTERDAM, THE NETHERLANDS AND INSCRIBED IN THE REGISTER OF THE CHAMBER OF COMMERCE OF AMSTERDAM UNDER NUMBER 33256762, REPRESENTED BY MARIA GARCIA ARGUELLES. SIGNED IN MADRID ON 24 APRIL 2000 FDO. CESAR RODRIGUEZ GONZALEZ OVIEDO BAR ASSOCIATION (SPAIN), N(0) 3.133 EX-99 44 0044.txt ARTICLES OF ASSOC. OF DESARROLLOS EOLICO EL AGUILA ARTICLES OF ASSOCIATION OF THE MERCANTILE COMPANY "DESARROLLOS EOLICOS EL AGUILA, SOCIEDAD ANONIMA" CHAPTER 1 - GENERAL MATTERS ARTICLE 1. NAME: A company is created with the name of "DESARROLLOS EOLICOS EL AGUILA, SOCIEDAD ANONIMA" that will be governed by these Articles, by the Consolidated Text of the Companies Act of 22nd December, 1989 and by any other legal requirements that may be of special application. ARTICLE 2. OBJECTS: The company's objects comprise: a) The promotion, construction and management of wind farms. b) Acquiring, purchasing, renting and sale of urban and rural property. Activities that require the possession of special requirements that are not fulfilled by this company are excluded from the objects. If legal provisions require any professional title, or official licence, or inscription in public registers in order to carry out any of the activities comprised in the objects, the said activities must be carried out through a person who has such professional title, and, if any, may not be fulfilled until such time as the necessary official requirements have been fulfilled. The objects may be carried out in total or in part, through the possession of shares or shares in other companies of identical or similar objects or in joint ventures. ARTICLE 3. THE REGISTERED OFFICE: The Registered Office of the company is No. 52, Avenida Academia General Militar, Zaragoza. The Board of Directors may authorise the creation, movement or closure of branches, agencies or regional offices and the transfer of the Registered Office to any other location within the same municipal area. ARTICLE 4. DURATION AND COMMENCEMENT DATE: The company is constituted for an indefinite period, and will commence trading on the day that the deed of incorporation is granted, without prejudice to the matters set out in Article 15 of the Consolidated Text. CHAPTER II. SHARE CAPITAL. SHARES ARTICLE 5. SHARE CAPITAL: [It will remain the same save for any agreed change that may arise from this present meeting.] ARTICLE 6. SHARES: The share certificates will be issued from books with counter foils with the details and requirements set out in Article 53 of the current Companies Act. Should shares without a vote be issued, this fact will be clearly stated on the share certificates. When the General Meeting approves the issue of new shares or the cancellation of current shares, it will be able to authorise the issue of multiple share certificates ARTICLE 7. SHAREHOLDERS' REGISTERS: The nominal shares will be entered into a shareholders' register in which will be recorded the subsequent transfers, showing the name, surname, company or status, nationality and address of the subsequent shareholders, as well as the existence of stamp duty and other charges against them. The company will only recognise that shareholder who is entered into the said register. ARTICLE 8. RIGHTS: Each share constitutes an equal part of the share capital and confers upon its holder the condition of shareholder, giving him all the rights that are set out in Article 48 of the current Consolidated Text. ARTICLE 9. INDIVISIBILITY: The shares will be indivisible, the co-holders of a share being obliged to name a single representative to exercise their ownership rights, and will be jointly responsible to the company for whatever liabilities are derived from their condition as a shareholder; this rule will be applied to all other cases of concurrence of rights of the shares. ARTICLE 10. BENEFICIAL OWNERSHIP AND PLEDGING: The voting and financial rights in the cases of beneficial ownership and pledging of the shares, as well as the liabilities arising from the status as a shareholder, are determined in accordance with Articles 67, 68, 69, 70, 71, 72 and 73 of the current Consolidated Text. ARTICLE 11. TRANSFER OF SHARES: 1. There will be free voluntary inter vivos transfer between shareholders, as well as that carried out in favour of companies belonging to the same group as the transferor, provided that the said transfer is notified to the other shareholders within a period of 14 days following the said action The remaining transfers inter vivos will be governed by the following rules: a) The shareholder who wishes to transfer howsoever all or part of his shares must advise the other shareholders accordingly (at the address that is disclosed for them in the Shareholders' Register) within a period of 14 days from the date of having received a written offer. The communication must include a true copy of the offer and of the acceptance of it with the condition that the remaining shareholders do not exercise their preferential rights of purchase. Furthermore, the said communication will contain, as a minimum, the number of shares that are intended to be transferred, the identity of the purchaser, the price and other conditions of the transfer. Within the thirty days following the said communication, the remaining shareholders may acquire the shares at the price offered by the interested third party. If there are several shareholders interested in acquiring the shares they will be divided pro rata between them in the proportion of those shares that they already hold. If the number of shares is not exactly divisible, the excess will be allocated between the shareholders by lottery. If 30 days have passed without any notification on behalf of any of the shareholders who received the notification of intention to transfer, the shareholder will be able to transfer the shares under the conditions as advised, that is to say, not at a price less than or in more favourable terms; if such were the case he must communicate immediately the new conditions for the transfer offer in accordance with that already set out in this section. Should 60 days have passed since the new communication and the transfer to the shareholders or the interested third parties has not taken place, then the right to carry out the announced transfer will lapse and, in order to carry it out, the procedures outlined in this Article must be recommenced. In which case, the shareholder who intended to transfer his shares will not be able to notify any future intention of transfer until six months have passed from the date of the end of the 60 day period previously mentioned in this subsection. b) The final selling price to third parties will not be less than that initially offered and communicated to the other shareholders. c) Insofar as it applies, all the procedures set out in the sections of this Article must be complied with, not only in voluntary transfers, but also in the case of obligatory transfers. d) The disposal of shares that is not in accordance with that set out in this Article will not be recognised by the company e) With regard to the rights of preferential subscription, the transfer of them will adhere to the applicable part of the regulations of this Article set out in the previous paragraphs. 2. Transfers of shares mortis causa will be carried out freely when they are made in favour of the spouse, descendants or older relations of the shareholder. If they should be bequeathed to other persons, these other persons will be obliged to advise the company's management within six months following the death of the shareholder, who will proceed in the same manner set out for the transfer inter vivos in this Article, and if the preferential rights of purchase that have been established are not exercised, the heirs or beneficiaries will be recognised as shareholders. The value of the share will be fixed for these purposes by an auditor named by the Mercantile Registrar, by means of an up-to-date balance sheet drawn up from the accounting records, that will recognise the valuation of intangible as well as tangible assets. CHAPTER III. COMPANY BODIES ARTICLE 12. COMPANY BODIES: The company is governed, managed and represented: a) By the General Shareholders Meeting b) By the Board of Directors ARTICLE 13. GENERAL MEETING: The shareholders, constituted at a General Meeting, will decide by majority those matters within the competence of the Meeting. The agreement of the General Meeting is binding on all the shareholders, including those dissenting and those absent, without prejudice to the rights of appeal that the law allows them. Attendance at General Meetings will require compliance with the conditions and requirements set out in Article 104 of the current Consolidated Text. ARTICLE 14. CLASSES OF MEETINGS: General Shareholders Meetings may be Ordinary and Extraordinary. The Ordinary General 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 profits. All Meetings that are not as stated in the previous paragraph will be considered as Extraordinary General Meetings. If the Ordinary General Meeting should not be convened within the legal period, it may be convened at the request of the shareholders and with a hearing of the Board of Directors, by the high court judge for the area in which the Registered Office is located, who in addition will appoint the person who will preside over it. The Extraordinary General Meeting will be convened at any time when the Board of Directors considers it to be in the interests of the company, or when requested by shareholders who are holders of at least five per cent of the share capital, setting out in the notice the matters to be considered at the Meeting. In this latter case, the Meeting must be convened to take place within the thirty days following the day on which it had been demanded by notarised document that the Board of Directors convene it. ARTICLE 15. CALLING MEETINGS: The shareholders' General Meetings must be called by an announcement published in the Official Gazette of the Mercantile Register and in one of the province's newspapers with a high circulation rate, at least 15 days before the date fixed for the Meeting. In addition, the General Meeting must be convened through individual notice, which will be sent by registered post with acknowledgement of receipt to the address that is noted in the Shareholders' Register. There must be a period of at least twenty days from the date on which the notice was sent to the last of the shareholders and the planned meeting date. The notice will state the date of the Meeting, at the first calling, and include the Agenda. It can also state the date on which, if it were appropriate, the Meeting would be convened at the second call, there being at least a period of 24 hours between them. Notwithstanding that set out in the previous paragraph, the Meeting will be understood to be convened, and will be validly constituted to deal with any matter whatsoever, whenever there may be present or represented all the share capital and those present accept unanimously that the Meeting take place. ARTICLE 16. VOTING: Each share gives the right to one vote. Resolutions of the General Meetings will be adopted by a majority of the votes, present or represented, except in relation to the following matters that will require a favourable vote of at least 75% of the share capital. a) Any modification of the company's Objects; increases in share capital; the issue of debentures convertible into shares; the reduction of share capital; liquidation, dissolution, subdivision or merger of the company; and, in general, any modification to the Articles of Association; b) Resolutions concerning the acquisition, sale or amortisation of own shares. c) Insofar as legally possible, resolutions that relate to situations of the insolvency of the company. d) Resolutions concerning the distribution of dividends. e) Increase or decrease in the number of members of the Board and the appointment, substitution or removal of members of the Board. f) Adoption of the annual accounts. g) Appointment and removal of auditors when appropriate without prejudice to Article 205 of the Consolidated Text of the Companies Act; h) In accordance with the provisions of Article 159 of the Companies Act, the exclusion from the right to preferential subscription to shares in the case of a capital increase. ARTICLE 17. QUORUM: The General Meeting, whether held as an Ordinary or Extraordinary meeting, will be validly constituted at the first calling when the shareholders present or represented hold at least eighty percent of the subscribed capital with the right to vote. If after 60 minutes have passed from the time indicated on the notice of meeting, there is no quorum constituted as required in this paragraph, it is understood that the Meeting will be adjourned to the same time 14 days later. At the resumption of the adjourned meeting, if thirty minutes have passed from the appointed time without the required quorum being formed, the Meeting will be validly constituted provided that there are present or represented shareholders that hold at least fifty per cent of the share capital. ARTICLE 18. PRESIDENT AND PROCEDURES: The General Meeting will be chaired by the President of the Board of Directors or whoever is performing that function; and, in their absence, by the shareholder who may be elected in each case by the shareholders present at the Meeting, acting as secretary whoever is secretary of the Board of Directors or in his absence whoever is so appointed by the shareholders present. The President will preside over the discussions. All the shareholders present will be able to intervene in the discussions. ARTICLE 19. MINUTES OF THE MEETING: Minutes will be drawn up for all the General Meetings, which may be approved by the Meeting itself, immediately afterwards and signed by the President and the Secretary: failing this, the Minutes may be approved by any means allowed by current legal provisions. The Minutes approved by whichever of these methods will have executive force from the date of approval. ARTICLE 20. MINUTE BOOK: All Minutes of General Meetings will be copied or transferred into a Minute Book, signed by the Secretary and approved by the President. Certificates of the resolutions adopted will be issued by the Secretary of the Board of Directors and approved by the President. ARTICLE 21 INFORMATION FOR SHAREHOLDERS: From the moment of convening the General Meeting, any shareholder will be able to obtain from the company immediately and without cost those documents that have to be submitted for approval at the Meeting and the auditor's report on the accounts if appropriate. This right will be specifically stated In the notice convening the meeting. From the moment the notice of the Meeting is published, any shareholder may request in writing or verbally during the said meeting, such reports or statements that they deem appropriate, in relation to the matters comprising the agenda. ARTICLE 22. DIRECTORS: It is not necessary to be a shareholder in order to be a director of the company. Those persons who are declared incompatible or prohibited legally, in particular those identified in the law 12/1995 of 11th May and Article 124 of the current Consolidated Text of the Companies Act may not be directors. ARTICLE 23. PERIOD OF OFFICE: The term of office of a director will be five years. They may be re-elected an unlimited number of times for the same maximum period of five years. ARTICLE 24. ACCOUNTABILITY: The accountability of the directors to the company and to the shareholders and to third parties shall be as defined and required by law. ARTICLE 25. REMOVAL: The removal of the directors may be approved at any time by the General Meeting. Directors found to be in violation of any incompatibilities or legal prohibitions shall be immediately removed at the request of any shareholder, without prejudice to the liability that may have been incurred by his misconduct. ARTICLE 26. BOARD OF DIRECTORS: The company will be managed by the Board of Directors, with a minimum number of four directors and a maximum of five, as decided by the General Meeting in accordance with that set out in law. The authority to appoint directors resides exclusively with the General Meeting. APPOINTMENTS OF THE BOARD OF DIRECTORS The Board of Directors will appoint its President and, if so empowered, one or more Vice-President. In the event of several Vice-Presidents, each one of the vice-presidencies will be numbered. The priority of a number will determine the order in which the Vice-Presidents will substitute for the President in those cases of absence, incapacity or vacancy. The Board of Directors will appoint a secretary and, if so empowered, a Vice-Secretary, who do not have to be directors, in which case they will act with a voice but without a vote. The Vice-Secretary will deputise for the Secretary in those cases of absence, incapacity or vacancy. CONVENING THE BOARD OF DIRECTORS The Board of Directors will be convened by the President, or in case of death, absence, incapacity or impossibility to do so, by the Vice-President, whenever it is considered necessary or appropriate, but there must be at least one meeting every three months. It must be convened whenever at least one member of the Board requests it. Should fourteen calendar days have elapsed since receiving the request without the President having convened the Board, the Board member who requested the meeting shall convene the Board. The agenda for the meeting shall be included in all notices convening the meeting. The notice will be sent by letter with acknowledgement of receipt to the address of each of the members of the Board that is on company records, at least fifteen days before the date stated for the meeting. It will be not be necessary to send a notice if all the members of the Board of Directors had been advised at the previous meeting. The Board of Directors will be validly constituted without the need for notice if all its members, present or represented, unanimously accept that the meeting be held. Voting in writing and without attending will only be accepted if no director opposes such a procedure. PLACE OF BOARD MEETING The Board of Directors will hold its meetings at the Registered Office of the company, unless another place is indicated in the notice within Spanish territory and unless no director opposes it within five days following receipt of the letter giving notice. CONSTITUTION OF THE BOARD OF DIRECTORS The Board of Directors will be validly constituted to debate and adopt any matter at the meeting when there are present, or represented, at the said meeting three members of the Board that had been appointed at the time of the General Meeting, even though not all the places were covered or even if afterwards vacancies occurred. In the case in which five directors were appointed, the quorum to constitute a Meeting will be satisfied with the presence of four directors, or their representatives. The members of the Board of Directors may only delegate their representation to another member of the Board. The representation must be conferred by any written method and specifically for each session. AGENDA OF THE BOARD OF DIRECTORS The Board of Directors may debate and adopt decisions upon matters appropriate to their powers, even when such matters do not appear on the agenda attached to the notice. PROCEDURE AND ADOPTION OF AGREEMENTS OF THE BOARD OF DIRECTORS The President will open for discussion the matters in the agenda, equally if they were included in the notice, or if they were added at the beginning of the Meeting. Any Board member, prior to the Meeting or during the course of it, will have the right to place before the Board any other matter for discussion and to be voted upon, in the order in which the President may determine. Once the President considers that the matter has been sufficiently debated he will put it to a vote, each member of the Board, present or represented, having one vote. The decisions will be adopted by the absolute majority of three members of the Board who either attend in person or by representation. Notwithstanding the foregoing, the adoption of the decisions relating to the matters set out below will require a favourable vote of three of the four members of the Board of Directors, or four of the members if there are five: 1 Request loans, except those in the ordinary course of business. 2 Any modification, cancellation or novation of the company's contracts. 3 Give guarantees of whatever type except those set out in finance documents. 4 Create mortgages, charges, or liens over all or part of the assets or properties of the company. 5 Loan money to third parties except the normal loans in the ordinary course of business. 6 Contract with any shareholder or a subsidiary of a shareholder. 7 Dispose of any asset of the company. 8 Take part in transactions outside the ordinary course of business or those that are outside the normal independence of relationships appropriate to commercial arm's length transactions. 9 Instigate judicial or extra-judicial claims or decide in respect of the defence, transaction, etc in these types of claims. 10 Regarding the budgets of the company: (i) Agree a budget (the "Budget"). (ii) Modify the agreed Budget. (iii)Spend amounts in excess of that forecast in the Budget, except in cases of demonstrable emergency or when the company is contractually obliged to make the payments even though the said payment was not included in the Budget. (iv) Make expenditures within the Budget that exceed pesetas 5 million. 11 Hire personnel, consultants or assessors. 12 Acquire or dispose of subsidiaries or shares in other companies. 13 Enter into long term contracts, which includes those that require a notice period for cancellation of at least three months and those where the liabilities are not easily predictable at the date of entering into the contract or those in which the eventual liability could be considered to be a serious risk for the company. 14 The premature repayment of loans. 15 Finalising contracts that require the payment of an amount in excess of pesetas 5 million throughout their duration, other than those expressly forecast within the agreed Budget. 16 Changes in the accounting principles or criteria of the company. DELEGATION OF POWERS The Board of Directors may delegate, permanently, all or part of its powers to an executive committee and in one or more managing directors, and determine which of its Board members are going to be so nominated. The permanent delegation of powers and the determination of the Board members who are to hold such powers, will require the favourable vote of two-thirds of the number of the Board members that were fixed by the General Meeting for the composition of this Board, even though the said number was not nominated in its entirety or even though afterwards there may have been vacancies. The directors with management responsibility have the express duty to inform each of the directors about the daily management of the company. ARTICLE 27. POWERS: The representation of the company, for legal and other purposes, resides in the Board of Directors and comprises all the actions contained in the objects. The Board of Directors has authority over any matter which relates to the management , representation and administration of the company, including all types of act of disposal. The representation will cover all the actions comprised within the objects of the company, including those in which, under civil or mercantile legislation or commercial or banking practice require express authorisation or mandate. CHAPTER IV BALANCE SHEET, ACCOUNTS AND PROFITS ARTICLE 28. FINANCIAL YEAR: The financial year of the company will be the calendar year, that is, it will cover the period between 1st January to 31st December of each year. ARTICLE 29. ANNUAL ACCOUNTS: Within the period of three months from the close of the financial year of the company, the management will draw up the annual accounts with the balance sheet, profit and loss account, explanatory notes and a report on the business, and, if appropriate, the proposed distribution of profits, to be submitted to the General Meeting for approval. All the directors shall sign the annual accounts and management report. Should the signature of one of them be lacking it will be so stated on each of those documents in which it is lacking, with a statement of the reason. When the company is not legally obliged to submit its account to be reviewed by an auditor, the shareholders who represent at least five per cent of the share capital will be able to request, in accordance with the law, the appointment of an auditor to carry out the review of the accounts for a year, provided that three months from the date of the close of the year end have not passed. The cost of this audit will be borne by the company. Under the provisions in law and in these Articles of Association, for the modification of the latter, an Extraordinary General Meeting may adopt the requirement that the company's annual accounts be submitted systematically to a review by auditors, even though it is not required by law. Under the same provisions, this requirement may be cancelled. Within the month following the adoption of the annual accounts by the Meeting, a certificate of the resolutions adopting the annual accounts and the application of the profits, to which will be attached a copy of each one of the said accounts and the other documents required by law will be presented for filing in the Mercantile Register appropriate to its Registered Office. If any of the annual accounts is drawn up in an abbreviated form, this will be made clear in the certificate, stating the reason therefor. Non-compliance of the directors regarding this requirement will give rise to the measures provided in law. ARTICLE 30. DISTRIBUTION OF PROFITS: The net profits of the company will be distributed, if appropriate, every year among the shareholders, unless agreed by a vote against of 75 per cent of the share capital, in accordance always with the adopted balance sheet and always taking into account the prior applications to be carried out in accordance with current legislation. ARTICLE 31. REMUNERATION OF THE DIRECTORS: The office of director will not be remunerated. CHAPTER V. WINDING UP AND LIQUIDATION ARTICLE 32. WINDING UP: The company shall be wound up for reasons that accord with the provisions of Article 260 of the current Consolidated Text of the Companies Act, carried out in agreement with that set out in the Articles, from Article 262 onwards, in the said legal text. ARTICLE 33. LIQUIDATION: It will not be necessary to appoint liquidators nor sell the assets of the company if the shareholders agree unanimously the destination of the company's assets, without prejudice to the legal powers and guarantees that are established in favour of the creditors and other interested third parties. CHAPTER VI. FINAL ARRANGEMENTS ARTICLE 34. ARBITRATION: The shareholders may not initiate any action against the company without having previously submitted their claim to the Board of Directors and subsequently to the General Meeting. All issues that could arise between shareholders and between these and the Company concerning company matters will be submitted to equity arbitration in the terms established in the Law of Arbitration of Private Rights of 5th December 1988. Nevertheless there remains the right to lodge an objection regarding the company resolutions as set out from Article 115 onwards and in the current Consolidated Text. EX-99 45 0045.txt CERTIFICATE OF INCORPORATION OF SINERGIA ARAGONESA CERTIFICATE OF INCORPORATION WITH RESPECT TO SINERGIA ARAGONESA, S.L. THE UNDERSIGNED, CESAR RODRIGUEZ, ATTORNEY-AT-LAW, OFFICIATING UNDER SPANISH BAR ASSOCIATION, DECLARES THAT: 1.- SINERGIA ARAGONESA, S.L. HEREINAFTER REFERRED TO AS THE "COMPANY" IS A CLOSED COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF SPAIN, HAVING ITS REGISTERED OFFICE AT ZARAGOZA (STREET: AVENIDA ACADEMIA GENERAL MILITAR; NUMBER 52) AND HAVING ITS OFFICES AT SUCH PLACE, AND BEING REGISTERED IN THE MERCANTILE REGISTER OF ZARAGOZA ON PAGE Z-26105 OF VOLUME 2491, BOOK 0, FOLIO 202. 2.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE NOT BEEN AMENDED SINCE THE INCORPORATION OF THE COMPANY, EXECUTED BEFORE D. FERNANDO USON VALERO, CIVIL LAW NOTARY, OFFICIATING IN ZARAGOZA, ON 28 OCTOBER 1999. 3.- ACCORDING TO ARTICLE 2 OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE PURPOSE OF THE COMPANY IS THE CONSTRUCTION, INSTALLATION AND DEVELOPMENT OF ELECTRICAL ENERGY PRODUCTION SITES, ESPECIALLY THROUGH THE EXPLOITATION OF WIND FARMS. THE LISTED ACTIVITIES CAN BE DEVELOPED INDIRECTLY, TOTALLY OR PARTIALLY, THROUGH PARTICIPATION IN OTHER COMPANIES WITH ANALOGOUS OR IDENTICAL OBJECTS. 4.- THE COMPANY CAN GIVE SECURITIES FOR DEBTS OF GROUP-COMPANIES AND OF ITS SHAREHOLDERS. 5.- THE COMPANY CAN PARTICIPATE IN, MANAGE AND FINANCE THESE ENTERPRISES. 6.- ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED MERCANTILE REGISTER, THE DIRECTORS OF THE COMPANY ARE: 1. DEREK JOHN SPENCER, BORN ON 29 MAY 1941, MARRIED, OF BRITISH NATIONALITY, RESIDING AT 23 PASEO DE LA CASTELLANA, 1ST FLOOR, MADRID. 2. CINERGY 2 BV, A DUTCH COMPANY WITH DOMICILE IN ROTTERDAM, THE NETHERLANDS AND INSCRIBED IN THE REGISTER OF THE CHAMBER OF COMMERCE OF AMSTERDAM UNDER NUMBER 33256762, REPRESENTED BY MARIA G. ARGUELLES. 3. CINERGY GLOBAL POWER, INC., A COMPANY DULY CONSITUTED IN THE STATE OF DELAWARE, USA UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, REPRESENTED BY FRANCISCO RAUSELL SOLARI. 4. SERGIO SAMPER RIVAS, MARRIED, OF SPANISH NATIONALITY, RESIDING AT AVENIDA ACADEMIA GENERAL MILITAR 52 OF ZARAGOZA, SPAIN. 5. JORGE SAMPER RIVAS, SINGLE, OF SPANISH NATIONALITY, RESIDING AT AVENIDA ACADEMIA GENERAL MILITAR 52 OF ZARAGOZA, SPAIN. 6. MARIA REYES VIDAL VICENTE, MARRIED, OF SPANISH NATIONALITY, RESIDING AT CAMINO DE LAS TORRES 31 OF ZARAGOZA, SPAIN. SIGNED IN MADRID ON 24 APRIL 2000 FDO. CESAR RODRIGUEZ GONZALEZ OVIEDO BAR ASSOCIATION (SPAIN), N(0) 3.133 EX-99 46 0046.txt ARTICLES OF ASSOCIATION OF SINERGIA ARAGONESA ARTICLES OF ASSOCIATION OF THE MERCANTILE COMPANY "SINERGIA ARAGONESA, SOCIEDED LIMITADA PART I - GENERAL PROVISIONS ARTICLE 1 - COMPANY NAME The name of the company is SINERGIA ARAGONESA SL. ARTICLE 2 - COMPANY OBJECTS 1. The objects for which the Company is established are the consultancy, development, building, operation and/or ownership of energy generating facilities and, in particular,aeolian energy, after complying with such special administrative formalities and requirements as may be legally imposed. 2. The activities which make up the company objects may be conducted by the company in whole or in part, directly or indirectly, in any of the ways allowed by law and, in particular, by way of ownership of shares or interests in companies with identical or similar purposes. ARTICLE 3 - DURATION OF THE COMPANY, CLOSING DATE OF THE FINANCIAL YEAR AND COMMENCEMENT OF TRADE 1. The duration of the Company is indefinite. 2. The closing date of the financial year shall be the 31st of December each year. 3. The Company shall commence its trade on the date the deed of execution is granted. ARTICLE 4 - REGISTERED OFFICE AND BRANCHES 1. The registered office of the Company will be 52 Avenida Academia General Militar, Zaragoza 50015 (Aragon). 2. The administrative body shall be competent to decide or pass a resolution to relocate the registered office within the same municipal district. 3. Similarly, the administrative body shall be competent to decide or pass a resolution to create, discontinue or transfer branches, within or off national territory. PART II - SHARE CAPITAL AND SHARES ARTICLE 5 - SHARE CAPITAL The share capital is SIX THOUSAND EUROS and is divided into ONE THOUSAND company shares of SIX EUROS nominal value each, numbered consecutively 1 to 1,000 both inclusive, cumulative and indivisible, which may not be incorporated in negotiable securities nor called shares. The share capital is fully subscribed for and paid up. The shares numbered 1 to 200 inclusive carry the right to a multiple vote in the Shareholders' meeting. This gives to each holder of such a share the right to four votes per share. ARTICLE 6 - SCHEME OF TRANSFER OF COMPANY SHARES 1. The voluntary transfer of company shares by acts inter vivos is subject to the scheme provided below: Voluntary transfer by acts inter vivos between shareholders, as well as the transfer made to companies belonging to the same group as the transferor, shall be unrestricted, PROVIDED ALWAYS THAT said transfer is notified to the remainder of the shareholders within 14 days following the same. Members shall have a right of pre-emption in respect of the remainder of voluntary transfers by acts inter vivos. If there are several shareholders interested in acquiring, the shares shall be distributed between all of them in proportion to their interest in the share capital. A shareholder intending to transfer one or more company shares must give notice, by notarial channels, to the remainder of the shareholders of the written offer from the third party interested in acquiring the shares, with a minimum content (the number of shares he intends to transfer, the transferee's identity, the consideration and other terms of the transfer). Within 30 days of receiving said notice, the shareholders receiving said communication shall notify the shareholder intending to transfer of the exercise or otherwise of his right of pre-emption over all of the shares offered, the consideration being the one offered by the third party interested. If any of the shareholders does not exercise their right, the remainder of the shareholders shall acquire pro rata. After 30 days elapse without any notification on the part of the remainder of the shareholders receiving communication of intention to transfer, the shareholder may transfer the shares upon the terms communicated, that is to say at a price no lower or on better terms: having where appropriate to communicate immediately, as provided in this paragraph, the new conditions of transfer offered. The right to make the announced transfer shall lapse and the formalities provided in this article resume, in order to carry it out, in the event of sixty days elapsing from the new communication and the transfer to the shareholders or third party interested failing to materialise. 2. The scheme of compulsory transfer of company shares shall be as provided generally in the Limited Liability Companies Act. The company shall have a right of pre-emption of such company shares as are subject to auction or any other form of compulsory disposal. The purport of this right of pre-emption is as directed in the Limited Liability Companies Act and shall be exercisable by the Company only in the absence of the shareholders exercising their right, which they have been legally granted. 3. Similarly, the scheme of transfer mortis causa of company shares shall be as legally laid down. Surviving shareholders shall have a right of pre-emption of the deceased shareholder's shares, assessed at the actual value they had on the shareholder's date of death. The determination of the value, terms of exercise of the right of pre-emption and the form of payment shall be governed by statute. 4. Transfers made in breach of this article shall be ineffective against the company. PART III: COMPANY BODIES ARTICLE 7 - COMPANY BODIES The Company shall have a General Meeting and an administrative body. These bodies, insofar as these Statutes are silent, shall be governed by the Limited Liability Companies Act. CHAPTER 1. SHAREHOLDERS' GENERAL MEETING ARTICLE 8 - COMPETENCE OF THE GENERAL MEETING The Meeting is entitled to discuss and resolve, by such majority as is laid down by law or the statutes, matters within its competence directed by the Law and in these Statutes. The matters specified in article 16 are, inter alia, those reserved to the competence of the Meeting. ARTICLE 9 - NOTICE OF THE GENERAL MEETING 1. A General Meeting will have to be called by the administrative body and, where appropriate, by the company liquidators. 2. The General Meeting must be called by individual communication, which is to be delivered by registered post and with acknowledgement of receipt to such address as is contained on the Register of members. There must be at least an interval of a fortnight between the date the announcement has been delivered to the last of the shareholders and the date scheduled for the holding of the meeting. 3. The communication of the notice shall be signed by the Chairman of the Company's Board. ARTICLE 10 - VENUE The General Meeting shall be held at such place and address as is directed in the notice. If the notice does not expressly indicate the venue, the Meeting shall be deemed to have been called at the Registered Office. ARTICLE 11 - PLENARY MEETING 1. The General Meeting shall be quorate to transact any business, without the need for a prior call, provided all the share capital is present and represented and the attenders unanimously agree to hold the meeting and the agenda of the same. 2. The Plenary Meeting may be held at any place on national territory or abroad. ARTICLE 12 - ATTENDANCE AND REPRESENTATION 1. The General Meeting may be attended by the holders of one or more company shares who have entered them on the Register of members or have communicated to the company their acquisition before the meeting is held. 2. The shareholders may be represented at General Meetings by another shareholder, or such person as holds a general power conferred in a public document with sufficient powers for such representation. ARTICLE 13 - COMMITTEE OF THE GENERAL MEETING 1. Those appointed, at the start of the meeting, by shareholders attending shall be Chairman and Secretary of the General Meeting. 2. The Chairman of the General Meeting shall be assisted by the Secretary. The person appointed by the shareholders attending the start of the meeting shall be Secretary of the Meeting. 3. If the presence of a Notary has been requested, the latter shall form part of the Board of the General Meeting. ARTICLE 14 - ATTENDANCE LIST 1. Before embarking on the agenda, the Secretary of the General Meeting shall draw up a list of attenders, which shall contain the names of shareholders attending and the names of shareholders represented and their proxies, and shall include by number the relevant shares. 2. If the attendance list does not appear at the start of the minutes of the General Meeting, it shall be attached thereto by means of an annexe signed by the Secretary, with the Chairman's countersignature. ARTICLE 15 - THE GENERAL MEETING'S MODE OF DELIBERATION 1. Once the attendance list is prepared, the Chairman shall declare the General Meeting quorate, if appropriate, specifying whether it may embark on the consideration of all matters included on the agenda or, otherwise, on which the General Meeting may deliberate and resolve. 2. The Chairman shall refer to deliberation the business included on the agenda as appear therein. 3. Any person with right of attendance may join in the deliberation, at least once, in connection with each of the points on the agenda, even though the Chairman of the General Meeting may lay down the order of contributions and limit at any time the maximum duration of each of them. 4. Once the Chairman considers a matter sufficiently discussed, he shall put it to the vote. ARTICLE 16 - MODE OF ADOPTING RESOLUTIONS 1. Resolutions shall be adopted by a majority of validly cast votes, provided they represent one-third of votes corresponding to the shares into which the share capital is divided. Blank votes shall be discounted. 2. Removal of members of the Board shall require votes in favour of 85% of votes corresponding to the shares into which the share capital is divided. 3. Resolutions to expel shareholders and resolutions relating to authorisation for directors to engage on their own or on someone else's behalf in the same, similar or complementary kind of activity which makes up the corporate objects shall also require votes in favour of two-thirds of the votes corresponding to the shares into which the share capital is divided. 4. Notwithstanding the foregoing paragraphs, votes in favour of 85% of the votes corresponding to the shares into which the share capital is divided shall be required by: 1) resolutions to increase or reduce capital and any other alteration of the company statutes, including alteration of the company objects; 2) Company liquidation resolutions; 3) alteration of the class of the administrative body, and the number of its members; 4) resolutions on the acquisition, sale or redemption of treasury shares; 5) such resolutions as are appropriate in relation to the company's insolvency situations; 6) the decision not to distribute dividends when legally and contractually possible. Therefore, subject to resolution by votes against of 85% of the share capital, the net profits shall be distributed every year between the shareholders, always complying with the appropriations to be made previously in accordance with the law in force. 7) resolutions on the appointment and removal of auditors when appropriate, without prejudice to the statutory provisions, 8) approval of the annual accounts, 9) resolutions on the conversion, merger or de-merger of the company, removal of the right of priority in capital increases. 5. With respect to decisions on the company's net profits, it will be deemed that they are to be distributed, where appropriate, every year between shareholders, subject to resolution by votes against of 85% of the share capital, always in accordance with the approved balance sheet and always complying with the appropriations to be made previously, in accordance with the law in force. CHAPTER 2 - THE ADMINISTRATIVE BODY ARTICLE 17 - STRUCTURE OF ADMINISTRATIVE BODY 1. The company is to be administered, as decided by the General Meeting as provided in the Law by a Board of Directors, by 6 directors in number. 2. The authority to appoint directors is vested exclusively in the General Meeting. 3. Alternate directors may be appointed in the event of one or more of them ceasing for any reason. ARTICLE 18 - SUBJECTIVE CONDITIONS, UNPAID OFFICE, TERM OF OFFICE 1. Shareholders' status is not required to be appointed member of the administrative body. 2. Members of the administrative body shall exercise their office for an indefinite time. 3. The directorship shall be unpaid. ARTICLE 19 - POWER OF ADMINISTRATION 1. The representation of the company, in- and out-of-court, is vested in the administrative body and shall extend to all acts included in the corporate objects. 2. The administrative body has authority in respect of whatever matters refer to the company's management, representation and administration, including all type of acts of disposition. ARTICLE 20 - POWER OF REPRESENTATION The power of representation, in- and out-of-court, shall be vested in the administrative body in the manner laid down by the law. ARTICLE 21 - DUTIES OF THE BOARD OF DIRECTORS 1. The Board of Directors shall appoint its Chairman and, optionally, one or more Vice-Chairmen. If there are several Vice-Chairmen, each of the Vice-Chairmen shall be numbered. The priority of number shall be determined by the order in which the Vice-Chairman shall deputise for the Chairmen in the cases of absence, incapacity or vacancy. 2. The Board of Directors shall appoint one Secretary and, optionally, one Assistant Secretary, the appointment being able to fall to persons who are not directors, in which event they shall have the right to speak but not to vote. The Assistant Secretary shall deputise for the Secretary in cases of absence, incapacity or vacancy. ARTICLE 22 - NOTICE CONVENING THE BOARD OF DIRECTORS 1. The Board of Directors shall be called by the Chairman or, in the event of the latter's death, absence, incapacity or inability, by the Vice-Chairman, provided he considers this necessary or appropriate, a meeting having to be held at least once every three months. It will have to be called necessarily whenever requisitioned by no less than one member of the administrative board. In the event of fourteen calendar days having elapsed from the receiving of the requisition, without the Chairman having called the Board, the latter must be called by the member of the Board who requisitioned the Board Meeting. 2. The Notice will have to indicate the Agenda of the meeting. 3. The notice is to be forwarded by letter with acknowledgement of receipt to the address of each of the members of the Board which is contained in the company's records, a minimum of a fortnight in advance of the date scheduled for the meeting. No notice will be necessary, if all members of the Board of Directors have been called at the previous meeting. 4. The Board of Directors shall be deemed quorate without the need for notice if all of its members, present or represented, unanimously agree to hold the meeting. 5. A written poll outside a meeting shall be allowed only when no director objects to this procedure. ARTICLE 23 - VENUE OF THE BOARD MEETING The Board of Directors shall hold its meetings at the registered office, save where another venue is indicated in the notice. Notices indicating a place abroad shall only valid if no director objects thereto. ARTICLE 24 - CONSTITUTION OF THE BOARD OF DIRECTORS 1. The Board of Directors shall be validly constituted to discuss and resolve on any matter when the meeting is attended by three members, present or represented, of the same which had fixed the General Meeting at the time, although said number has not been covered in its entirety or even when vacancies have subsequently arisen. 2. Members of the Board of Directors may only appoint another member of the Board to represent them. 3. The representation will have to be granted by any written means and specifically for each meeting. ARTICLE 25 - AGENDA OF THE MEETING The Board of Directors may deliberate and adopt resolutions in matters within its competence, even when they do not appear on the Agenda of the notice. ARTICLE 26 - MODE OF DELIBERATING AND ADOPTING RESOLUTIONS OF THE BOARD OF DIRECTORS 1. The Chairman shall refer to deliberation matters on the Agenda, both if this appears in the notice, as if it is prepared at the start of the meeting. Any of the members of the Board shall, prior to the meeting or in the course thereof, have the right to refer to deliberation and voting any other matter in such order as is directed by the Chairman in his reasonable discretion. 2. Once the Chairman considers a matter sufficiently discussed, he shall put it to the vote, each member of the Board, present or represented, being entitled to one vote. 3. Resolutions shall be adopted by a straight majority of members of the Board who have attended personally or by proxy. 4. Notwithstanding the above, the adoption of resolutions relating to the matters set out below shall require the votes in favour of five out of the six members of the Board of Directors: 1) Raising new loans granting finance which is not necessary for the ordinary course of the company's business, 2) Varying contracts previously entered into by the company, 3) Giving guarantees or endorsements to the company or other parties. 4) Without prejudice to the foregoing paragraphs, the giving of mortgages or any other type of collateral or personal security, as well as the giving of any charge over the assets or income for any reason of the company. 5) Granting loans or advances to third parties, except such advance as it grants as a consequence of the ordinary course of its business 6) Contracting with any shareholder or with any shareholder's affiliated business 7) The disposal of any tangible asset of the company 8) Any contract which goes beyond the company's ordinary business 9) Both the commencement and the submission of an answer or defence to legal claims or by way of arbitration 10) The approval and alterations of budgets 11) Incurring any expense which goes beyond the budget, subject to cases of demonstrable urgency or by legal or contractual obligation validly contracted pursuant to these Statutes 12) The engagement of working staff 13) The acquisition or disposal of shares or interests in other businesses 14) Establishing long-term agreements which require periods of notice of no less than three months to terminate the agreement or which entail serious or unquantifiable risks on the date of completion of said agreements 15) The signing of contracts, the total consideration of which to the company exceeds the figure of 30,050.6 Euros (5,000,000 pesetas). ARTICLE 27 - DELEGATION OF POWERS 1. The Board of Directors may, permanently, delegate all or part of its powers to an Executive Board and to one or more Managing Directors, and determine the members of the Board itself who will be the regulars on the delegated body. The Board of Directors may not delegate its powers in any of the matters for which decision-making by qualified majority of five members of the Board is required. 2. The delegation of powers permanently and determination of members of the Board itself who have to hold such posts shall require, for their validity, votes in favour of two-thirds of numbers of members of the Board which, at the time, had fixed the General Meeting for the composition of this body, although said number is not covered in its entirety or even when vacancies have subsequently arisen. 3. Managing Directors shall be under an express duty to inform each of the Directors about the company's day-to-day management. PART IV: WINDING-UP AND LIQUIDATION OF THE COMPANY ARTICLE 28 - WINDING-UP AND LIQUIDATION OF THE COMPANY The company shall be wound up on the grounds and with the effects provided by statute. ARTICLE 29 - LIQUIDATORS Upon the company being wound up, all directors with a valid appointment and registered at the Mercantile Registry will automatically turn into liquidators, save when the company has appointed others at the time the winding-up is resolved. The liquidators shall act internally according to the regulations themselves of the structure which the administrative body has at the time. ARTICLE 30 - POWER TO REPRESENT THE WOUND-UP COMPANY If the company is wound up, the power of representation shall be vested in the liquidators jointly and severally, whatever has been the scheme of the power of representation vested in the administrative body. EX-99 47 0047.txt DEED OF INCORPORATION OF CG BAGHABARI I Cinergy/documenten/oprichting1/opricheng PB/ST/sm MID81450/004 OFFICE TRANSLATION OF THE DEED OF INCORPORATION OF CINERGY GLOBAL BAGHABARI I B.V., HAVING ITS REGISTERED OFFICE AT AMSTERDAM THE NETHERLANDS ON THE FIFTH DAY OF MARCH, NINETEEN HUNDRED NINETY-NINE, THERE APPEARED BEFORE ME, MR STEVEN VAN DER WAAL, DEPUTY CIVIL LAW NOTARY, LIVING AT THE HAGUE, HEREINAFTER TO BE REFERRED TO AS: "CIVIL LAW NOTARY", AS SUBSTITUTE OF MR. PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM: SERAP TULTAK, LAWYER, RESIDING AT (3035 HM) ROTTERDAM, THE NETHERLANDS, ZAAGMOLENSTRAAT 206, BORN AT ISKENDERUN, TURKEY, ON THE NINETEENTH DAY OF OCTOBER NINETEEN HUNDRED AND SIXTY-EIGHT, NEITHER MARRIED NOR REGISTERED PARTNER, OF DUTCH NATIONALITY, PASSPORT NUMBER N07957495, ACTING FOR THE PURPOSES HEREOF AS WRITTEN ATTORNEY OF THE COMPANY ORGANISED UNDER THE LAWS OF THE NETHERLANDS: CINERGY HOLDINGS B.V., HAVING ITS REGISTERED OFFICE AMSTERDAM, THE NETHERLANDS, AND WITH OFFICES AT (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. THE APPEARER STATED THAT SAID PROXY BY THIS DEED INCORPORATES A PRIVATE LIMITED LIABILITY COMPANY WITH ENACTMENT OF THE FOLLOWING ARTICLES OF ASSOCIATION. NAME AND DOMICILE ARTICLE 1 1. THE NAME OF THE COMPANY IS: CINERGY GLOBAL BAGHABARI I B.V. 2. THE COMPANY HAS ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS. OBJECT ARTICLE 2 THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTY RIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. CAPITAL AND SHARES ARTICLE 3 1. THE AUTHORISED CAPITAL AMOUNTS TO TWO HUNDRED THOUSAND DUTCH GUILDERS (NLG 200.000,=), DIVIDED INTO TWO THOUSAND (2,000) SHARES, NUMBERED 1 UP TO AND INCLUDING 2,000, EACH SHARE HAVING A PAR VALUE OF ONE HUNDRED DUTCH GUILDERS (NLG 100,=). 2. THE SHARES SHALL BE REGISTERED SHARES. 3. NO SHARE CERTIFICATE SHALL BE ISSUED. 4. THE ISSUANCE OF SHARES, ALIENATION OF SHARES IN THE CAPITAL OF THE COMPANY BY THE COMPANY, AS WELL AS THE GRANTING OF RIGHTS TO SUBSCRIBE FOR THESE SHARES, SHALL BE EFFECTED BY THE BOARD OF MANAGEMENT PURSUANT TO A RESOLUTION OF THE GENERAL MEETING OF SHAREHOLDERS, - HEREINAFTER REFERRED TO AS: "THE GENERAL MEETING" - , WHICH RESOLUTION SHALL LAY DOWN THE DATE OF ISSUE, THE NUMBER OF SHARES TO BE ISSUED, AS WELL AS THE OTHER CONDITIONS, UNDER THE PROVISO THAT THE SHARES ARE NOT ISSUED BELOW PAR. 5. THE GENERAL MEETING MAY DELEGATE ITS POWERS TO PASS RESOLUTIONS REFERRED TO IN THE PRECEDING PARAGRAPH TO ANOTHER CORPORATE BODY AND MAY REVOKE SUCH DELEGATION. 6. ON THE ISSUANCE OF SHARES, EACH SHAREHOLDER SHALL HAVE A PRE-EMPTIVE RIGHT PRO RATA TO THE AGGREGATE AMOUNT OF HIS SHARES, SUBJECT TO LEGAL PROVISIONS. THE PRE-EMPTIVE RIGHT SHALL NOT BE TRANSFERABLE. 7. THE SHARES SHALL ONLY BE ISSUED AGAINST PAYMENT IN FULL. 8. THE COMPANY MAY GRANT LOANS FOR THE SUBSCRIPTION OR ACQUISITION OF SHARES IN THE CAPITAL OF THE COMPANY, BUT ONLY TO THE EXTENT OF ITS DISTRIBUTABLE RESERVES. USUFRUCT AND RIGHT OF PLEDGE ON SHARES ARTICLE 4 1. A RIGHT OF USUFRUCT OR PLEDGE MAY BE ESTABLISHED ON THE SHARES OF THE COMPANY. 2. USUFRUCTUARIES AND PLEDGEES HAVE NO VOTING RIGHTS. 3. USUFRUCTUARIES AND PLEDGEES DO NOT HAVE THE RIGHTS GRANTED BY LAW TO HOLDERS OF DEPOSITARY RECEIPTS FOR SHARES ISSUED WITH THE CO-OPERATION OF THE COMPANY. DEPOSITARY RECEIPTS FOR SHARES ARTICLE 5 1. THE COMPANY WILL NOT CO-OPERATE WITH THE ISSUE OF DEPOSITARY RECEIPTS FOR SHARES. 2. NO BEARER SHARE-CERTIFICATES MAY BE ISSUED. REGISTER OF SHAREHOLDERS ARTICLE 6 1. THE BOARD OF MANAGING DIRECTORS WILL KEEP A REGISTER WHICH CONTAINS: A. THE NAMES AND ADDRESSES OF SHAREHOLDERS; B. THE AMOUNT PAID ON EACH SHARE; C. THE NAMES AND ADDRESSES OF THOSE WHO HAVE A RIGHT OF USUFRUCT OR PLEDGE; D. EACH RELEASE OF LIABILITY FOR PAYMENT DUE ON SHARES. 2. THE REGISTER MUST BE REGULARLY UPDATED. 3. EACH SHAREHOLDER IS OBLIGED TO ENSURE THAT HIS ADDRESS IS KNOWN TO THE COMPANY. 4. IF REQUESTED, THE BOARD OF MANAGING DIRECTORS WILL, FREE OF CHARGE, PROVIDE A SHAREHOLDER, A USUFRUCTUARY OR PLEDGEE WITH AN EXTRACT FROM THE REGISTER WITH RESPECT TO HIS RIGHTS TO A SHARE. 5. THE BOARD OF MANAGING DIRECTORS MAKES THE REGISTER AVAILABLE FOR INSPECTION BY SHAREHOLDERS AT THE COMPANY'S OFFICES. SHARES IN JOINT-OWNERSHIP ARTICLE 7 1. IF SHARES ARE JOINTLY OWNED, THE PERSONS ENTITLED TO THESE SHARES MAY ONLY EXERCISE THE RIGHTS ATTACHED TO THESE SHARES IF THEY ARE REPRESENTED FOR THIS PURPOSE VIS-A-VIS THE COMPANY BY A PERSON APPOINTED BY THEM IN WRITING OR BY THE JUDGE. 2. THE NAME AND ADDRESS OF THIS REPRESENTATIVE ARE ENTERED IN THE REGISTER OF SHAREHOLDERS. TRANSFER OF SHARES ARTICLE 8 1. EACH TRANSFER OF SHARES NEEDS THE APPROVAL OF THE GENERAL MEETING. 2. THE APPLICATION FOR APPROVAL MUST BE DIRECTED TO THE COMPANY, STATING THE NUMBER OF SHARES INVOLVED AND THE NAME OF THE PERSON TO WHICH THE APPLICANT INTENTS TO TRANSFER THE SHARE(S). 3. THE APPROVAL IS SUPPOSED TO BE GRANTED: A. IF NO DECISION IS TAKEN WITHIN THIRTY DAYS; B. IF IN CASE THE APPROVAL IS DENIED, NO OTHERS ARE APPOINTED WHO ARE WILLING AND ABLE TO BUY ALL SHARES THE APPLICATION REFERS TO AGAINST PAYMENT IN CASH OF THE PRICE AT WHICH THE SHARES WILL BE VALUED BY ONE OR MORE EXPERTS. 4. THE TRANSFER OF THE SHARES CAN ONLY TAKE PLACE WITHIN THREE MONTHS AFTER THE APPROVAL HAS BEEN GRANTED OR IS SUPPOSED TO BE GRANTED. 5. THE COMPANY CAN ONLY BE APPOINTED AS PERSON WILLING TO BUY THE SHARES WITH THE AGREEMENT OF THE APPLICANT. 6. IF THE APPLICANT ACCEPTS THE PERSON(S) WILLING TO BUY THE SHARES ON OFFER, THE PRICE OF THE SHARES WILL BE DETERMINED BY THE COMPANY ACCOUNTANT IF HE IS AN INDEPENDENT ACCOUNTANT AND OTHERWISE BY AN EXPERT APPOINTED BY THE COURT (KANTONRECHTER) WITHIN WHOSE DISTRICT THE COMPANY IS STATUTARILY ESTABLISHED, UNLESS THE PARTIES AGREE OTHERWISE. 7. THE APPLICANT MAKING THE OFFER IS ENTITLED TO WITHDRAW HIS OFFER WITHIN A MONTH AFTER BEING INFORMED OF THE PERSON(S) WILLING TO BUY THE SHARES AND THE PRICE. 8. THE APPLICATION FOR APPROVAL AND ALL NOTIFICATIONS REFERRED TO IN THIS ARTICLE MUST BE SEND BY REGISTERED MAIL UNLESS ALL SHAREHOLDERS AGREE UNANIMOUSLY OTHERWISE. ACQUISITION OF OWN SHARES ARTICLE 9 1. THE COMPANY MAY ONLY ACQUIRE SHARES IN ITS OWN CAPITAL FREE OF CHARGE, OR IF ALL OF THE FOLLOWING PROVISIONS ARE COMPLIED WITH: A. THE COMPANY'S OWN EQUITY MINUS THE ACQUISITION PRICE IS NOT SMALLER THAN THE PAID-IN AND CALLED UP PART OF THE SHARE CAPITAL PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW; B. THE NOMINAL AMOUNT OF THE SHARES IN ITS CAPITAL TO BE ACQUIRED AND THOSE ALREADY HELD BY THE COMPANY AND ITS SUBSIDIARIES DOES NOT AMOUNT TO MORE THAN HALF OF THE SUBSCRIBED CAPITAL; C. AUTHORISATION FOR THE ACQUISITION HAS BEEN GRANTED BY THE GENERAL MEETING OR BY ANOTHER COMPANY BODY APPOINTED BY IT. 2. THE AMOUNT OF THE COMPANY'S OWN CAPITAL ACCORDING TO THE MOST RECENTLY ADOPTED BALANCE SHEET, MINUS THE ACQUISITION PRICE FOR THE SHARES IN THE COMPANY'S CAPITAL, AND MINUS THE DISTRIBUTIONS OUT OF THE PROFITS OR RESERVES TO OTHERS WHICH WERE OWED BY THE COMPANY AND ITS SUBSIDIARIES AFTER THE DATE THE BALANCE WAS ADOPTED, DETERMINES THE VALIDITY OF THE ACQUISITION. IF MORE THAN SIX MONTHS HAVE PASSED AFTER A CLOSE OF THE FINANCIAL YEAR WITHOUT ANNUAL ACCOUNTS HAVING BEEN ADOPTED, THE ACQUISITION IN ACCORDANCE WITH PARAGRAPH 1 IS NOT PERMITTED. 3. THE PREVIOUS PARAGRAPHS DO NO APPLY TO SHARES ACQUIRED BY THE COMPANY BY OPERATION OF LAW. 4. ACQUISITION BY THE COMPANY OF NOT FULLY PAID-UP SHARES IN HER OWN CAPITAL IS VOID. ISSUE AND TRANSFER OF SHARES ARTICLE 10 1. FOR ISSUE OF SHARES AFTER INCORPORATION OR FOR THE TRANSFER OF SHARES OR FOR THE CREATION OR TRANSFER OF A LIMITED RIGHT THEREON, A NOTARIAL DEED IS REQUIRED. 2. UNLESS THE COMPANY HERSELF IS A PARTY TO THE TRANSFER, THE RIGHTS ATTACHED TO THE SHARES MAY NOT BE EXERCISED BEFORE THE ACKNOWLEDGEMENT BY THE COMPANY - WHETHER OF NO OF HER OWN ACCORD - OF THE TRANSFER, OR BEFORE THE TRANSFER HAS BEEN SERVED TO THE COMPANY. MANAGEMENT ARTICLE 11 1. THE COMPANY IS MANAGED BY A BOARD OF MANAGEMENT, CONSISTING OF AT LEAST ONE OR MORE MANAGING DIRECTORS A AND AT LEAST ONE OR MORE MANAGING DIRECTORS B. 2. THE GENERAL MEETING DETERMINES THE NUMBER OF MANAGING DIRECTORS A AND MANAGING DIRECTORS B. MANAGING DIRECTORS B NEED TO BE RESIDENTS OF THE NETHERLANDS. 3. IF A VACANCY ARISES IN THE BOARD OF MANAGING DIRECTORS, THE BOARD OF MANAGING DIRECTORS RETAINS ITS POWERS. 4. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ONE OR MORE DIRECTORS B, THE GENERAL MEETING WILL - WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE - MAKE TEMPORARILY PROVISIONS. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ALL THE DIRECTORS, OR OF THE SOLE DIRECTOR, THE GENERAL MEETING WILL, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE, MAKE TEMPORARILY PROVISIONS. APPOINTMENT, DISMISSAL AND SALARIES OF MANAGING DIRECTORS ARTICLE 12 1. THE MANAGING DIRECTORS ARE APPOINTED BY THE GENERAL MEETING. 2. THE GENERAL MEETING WILL DETERMINE THE SALARIES AND OTHER CONDITIONS OF EMPLOYMENT OF EVERY MANAGING DIRECTOR. 3. MANAGING DIRECTORS MAY BE SUSPENDED OR DISMISSED BY THE GENERAL MEETING AT ANY TIME. 4. THE BOARD OF MANAGING DIRECTORS ADOPT A CHARTER, SETTING OUT RULES ON THE DECISION MAKING PROCESS OF THE BOARD OF MANAGING DIRECTORS. THE CHARTER REQUIRES THE APPROVAL OF THE GENERAL MEETING. 5. THE BOARD OF MANAGING DIRECTORS MAY ADOPT AN ALLOCATION OF DUTIES STATING FOR WHICH DUTY EACH MANAGING DIRECTOR HAS A PRIME RESPONSIBILITY. SUCH ALLOCATION OF DUTIES REQUIRES THE APPROVAL OF THE GENERAL MEETING. 6. THE BOARD OF MANAGEMENT MEETS AS OFTEN AS THE BOARD DEEMS NECESSARY. VALID RESOLUTIONS MAY ONLY BE ADOPTED BY THE BOARD OF MANAGEMENT IF AT LEAST ONE DIRECTOR A AND TWO DIRECTORS B ARE PRESENT. ALL RESOLUTIONS OF THE BOARD OF MANAGEMENT ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST. THE BOARD OF MANAGEMENT MAY ALSO ADOPT BOARD RESOLUTIONS BY TELEPHONE OR TELEX, OR ANY OTHER PROPER MEANS OF COMMUNICATION (INTERNET, E-MAIL). APPROVAL OF MANAGEMENT DECISIONS ARTICLE 13 1. THE GENERAL MEETING MAY SUBMIT RESOLUTIONS OF THE BOARD OF MANAGING DIRECTORS TO ITS APPROVAL. SUCH RESOLUTIONS ARE TO BE CLEARLY DEFINED AND NOTIFIED IN WRITING TO THE BOARD OF MANAGING DIRECTORS. 2. THE APPROVAL REFERRED TO IN THE PREVIOUS PARAGRAPH DOES NOT HAVE TO BE GIVEN FOR EACH INDIVIDUAL CASE IF IT HAS BEEN GRANTED IN A GENERAL SENSE. 3. THE BOARD OF MANAGING DIRECTORS HAS TO ACT IN ACCORDANCE WITH THE DIRECTIONS OF THE GENERAL MEETING CONCERNING THE FINANCIAL, ECONOMICAL, SOCIAL AND PERSONNEL MANAGEMENT. REPRESENTATION OF THE COMPANY ARTICLE 14 1. THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. 2. IF THE COMPANY HAS CONFLICTING INTERESTS WITH ONE OR MORE MANAGING DIRECTORS, THE COMPANY MAY, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1 OF THIS ARTICLE, STILL BE REPRESENTED BY THAT MANAGING DIRECTOR. THE GENERAL MEETING IS ALWAYS EMPOWERED TO APPOINT ONE OR MORE PERSONS FOR THIS PURPOSE. 3. LEGAL ACTS BETWEEN THE COMPANY AND THE HOLDER OF ALL THE SHARES IN THE CAPITAL OF THE COMPANY HAVE TO BE LAID DOWN IN WRITING IF THE COMPANY HAS BEEN REPRESENTED BY THE SHAREHOLDER. THE OBLIGATION TO LAY DOWN THE LEGAL ACT IN WRITING ALSO APPLIES IF THE COMPANY IS REPRESENTED BY A PERSON WHO IS ENTITLED TO A MATRIMONIAL COMMUNITY OF GOODS OF WHICH ALL SHARES ARE A PART. 4. FOR THE APPLICATION OF PARAGRAPH 3, SHARES HELD BY THE COMPANY OR ITS SUBSIDIARIES ARE NOT TAKEN INTO ACCOUNT. PARAGRAPH 3 DOES NOT APPLY IF THE LEGAL ACTS, AND THEIR CONDITIONS AS AGREED ON, ARE PART OF THE CUSTOMARY CONDUCT OF THE BUSINESS OF THE COMPANY. GENERAL MEETING ARTICLE 15 1. THE ANNUAL GENERAL MEETING IS HELD NO MORE THAN SIX MONTHS AFTER THE END OF THE FINANCIAL YEAR. 2. THE AGENDA OF THAT MEETING WILL CONTAIN AT LEAST THE FOLLOWING POINTS: A. THE ANNUAL REPORT; B. ADOPTION OF THE ANNUAL ACCOUNTS; C. DETERMINATION OF THE DISTRIBUTION OF PROFITS. 3. EXTRAORDINARY GENERAL MEETINGS ARE HELD WHENEVER ONE OF THE MANAGING DIRECTORS CONSIDERS THIS DESIRABLE, OR ONE OR MORE SHAREHOLDERS, COLLECTIVELY REPRESENTING AT LEAST ONE TENTH OF THE ISSUED SHARE CAPITAL, REQUEST THIS IN WRITING, DETAILING THE SUBJECTS TO BE DEALT WITH. PLACE AND CALLING OF THE MEETING A ARTICLE 16 1. THE GENERAL MEETINGS WILL BE HELD IN AMSTERDAM, ROTTERDAM, THE HAGUE OR HAARLEMMERMEER (SCHIPHOL AIRPORT). 2. ALL THE SHAREHOLDERS MUST BE NOTIFIED OF A GENERAL MEETING. 3. THE GENERAL MEETING IS CALLED BY THE BOARD OF MANAGING DIRECTORS BY LETTERS SENT TO THE ADDRESSES STATED IN THE REGISTER OF SHAREHOLDERS. 4. THE LETTERS CONTAIN THE TIME AND PLACE OF THE GENERAL MEETING, AS WELL AS THE SUBJECTS TO BE DEALT WITH. 5. THE GENERAL MEETING WILL BE CALLED NO LATER THAN FIFTEEN DAYS BEFORE THE DAY OF THE GENERAL MEETING. CHAIRMANSHIP ARTICLE 17 THE GENERAL MEETING CHOOSES ITS OWN CHAIRMAN. MINUTES ARTICLE 18 1. MINUTES OF THE BUSINESS OF THE GENERAL MEETING SHALL BE DRAWN UP, WHICH ARE SIGNED BY THE CHAIRMAN OF THE GENERAL MEETING AND BY A PERSON APPOINTED BY HIM. 2. IF AN OFFICIAL RECORD OF THE BUSINESS OF THE GENERAL MEETING IS DRAWN UP BY A NOTARY, IT SUFFICES FOR THE CHAIRMAN OF THE GENERAL MEETING TO CO-SIGN THIS. RIGHTS RELATED TO THE MEETING ARTICLE 19 1. EACH SHAREHOLDER IS ENTITLED TO ATTEND AND SPEAK AT THE GENERAL MEETING. 2. EACH SHAREHOLDER MAY BE REPRESENTED AT THE GENERAL MEETING BY SOMEONE AUTHORISED IN WRITING. DECISION MAKING ARTICLE 20 1. EACH SHARE CONFERS THE RIGHT TO CAST ONE VOTE. 2. ALL RESOLUTIONS ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST, UNLESS THESE ARTICLES OF ASSOCIATION REQUIRE A LARGER MAJORITY. 3. BLANK VOTES AND INVALID VOTES ARE CONSIDERED NOT TO HAVE BEEN CAST. 4. VOTING ON BUSINESS MATTERS OCCURS ORALLY; VOTING ON PERSONS TAKES PLACE IN WRITING BY UNSIGNED BALLOT. 5. IN THE CASE OF A TIE IN VOTES ON BUSINESS MATTERS, THE PROPOSAL HAS BEEN REJECTED. 6. IF NO ONE HAS ACQUIRED AN ABSOLUTE MAJORITY IN A VOTE ON PERSONS IN THE FIRST VOTE, A NEW, FREE VOTE IS HELD. IF AGAIN THERE IS NO ABSOLUTE MAJORITY, THERE IS ANOTHER VOTE BETWEEN THE TWO PERSONS WHO OBTAINED THE MOST VOTES BETWEEN THEM IN THE SECOND VOTE. IF NECESSARY, AN INTERIM VOTE IS HELD TO DECIDE BETWEEN WHICH TWO PERSONS THE NEW VOTE WILL BE HELD. IN THE CASE OF A TIE IN VOTES AFTER THE NEW VOTE LOTS WILL BE DRAWN BY THE CHAIRMAN OF THE GENERAL MEETING TO REACH A DECISION. 7. ALL PROPOSALS MAY BE ACCEPTED BY ACCLAMATION IF NONE OF THE PERSONS ENTITLED TO VOTE OPPOSES THIS. 8. NO VOTE MAY BE CAST IN THE GENERAL MEETING FOR A SHARE WHICH IS HELD BY THE COMPANY OR BY A SUBSIDIARY COMPANY. 9. IN DETERMINING TO WHAT EXTENT THE SHAREHOLDERS ARE VOTING, ATTENDING OR REPRESENTED, OR TO WHAT EXTENT THE SHARE CAPITAL IS MADE AVAILABLE OR REPRESENTED, THE SHARES FOR WHICH THE LAW STATES THAT NO VOTE CAN BE CAST, ARE NOT TAKEN INTO ACCOUNT. DECISION-MAKING WHEN THE ENTIRE SUBSCRIBED CAPITAL IS PRESENT ARTICLE 21 THE GENERAL MEETING MAY ADOPT RESOLUTIONS REGARDING ALL SUBJECTS WHICH ARISE, PROVIDED THAT THERE IS AN UNANIMOUS VOTE, IF ALL THE SHAREHOLDERS ARE PRESENT, EVEN IF THE PROVISIONS ON THE PLACE AND CALLING OF THE GENERAL MEETING HAVE NOT BEEN COMPLIED WITH. DECISION-MAKING WITHOUT CALLING A GENERAL MEETING ARTICLE 22 SHAREHOLDERS MAY ALSO ADOPT RESOLUTIONS WITHOUT CALLING A GENERAL MEETING, PROVIDED THAT ALL THE SHAREHOLDERS HAVE DECLARED TO BE IN FAVOUR OF THE PROPOSAL IN WRITING, BY TELEGRAPH, TELEX OR FAX. FINANCIAL YEAR ARTICLE 23 THE FINANCIAL YEAR COINCIDES WITH THE CALENDAR YEAR. ANNUAL ACCOUNTS ARTICLE 24 1. THE BOARD OF MANAGING DIRECTORS WILL DRAW UP THE ANNUAL ACCOUNTS, CONSISTING OF THE BALANCE SHEETS AND A PROFIT AND LOSS ACCOUNT, WITH AN EXPLANATION THERETO, WITHIN FIVE MONTHS OF THE END OF THE FINANCIAL YEAR, UNLESS THIS PERIOD HAS BEEN EXTENDED BY THE GENERAL MEETING FOR A MAXIMUM OF SIX MONTHS ON GROUNDS OF SPECIAL CIRCUMSTANCES. 2. THE ANNUAL ACCOUNTS ARE SIGNED BY ALL MANAGING DIRECTORS; IF ANY SIGNATURE IS MISSING, THE REASON FOR THIS IS STATED. DISCHARGE OF THE MANAGEMENT ARTICLE 25 THE UNCONDITIONAL ADOPTION OF THE ANNUAL ACCOUNTS BY THE GENERAL MEETING DISCHARGES, SUBJECT TO LEGAL LIMITATIONS, THE MANAGING DIRECTORS FOR THEIR MANAGEMENT FOR THE FINANCIAL YEAR CONCERNED. DIVIDEND ARTICLE 26 1. THE PROFIT IS ENTIRELY AT THE DISPOSAL OF THE GENERAL MEETING. 2. THE COMPANY MAY ONLY MAKE DISTRIBUTIONS TO SHAREHOLDERS AND OTHERS ENTITLED TO PROFITS, IN AS FAR AS ITS EQUITY IS LARGER THAN THE PAID-UP AND CALLED PART OF THE CAPITAL, PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW. 3. DISTRIBUTION OF PROFITS OCCURS AFTER THE ANNUAL ACCOUNTS HAVE BEEN ADOPTED, EVIDENCING THAT SUCH IS JUSTIFIED. 4. THE COMPANY MAY ONLY MAKE INTERIM DISTRIBUTIONS IF THE PROVISIONS OF PARAGRAPH 2 HAVE BEEN COMPLIED WITH. 5. NO PROFIT IS PAID ON SHARES TO THE COMPANY. 6. THE CLAIM TO DIVIDEND EXPIRES AFTER FIVE YEARS. AMENDMENTS TO THE ARTICLES OF ASSOCIATION AND DISSOLUTION OF THE COMPANY ARTICLE 27 1. A RESOLUTION TO AMEND THE ARTICLES OF ASSOCIATION, OR TO DISSOLVE THE COMPANY, MAY ONLY BE ADOPTED BY THE GENERAL MEETING. 2. IN CALLING A GENERAL MEETING IN WHICH THERE SHALL BE DEALT WITH A PROPOSAL TO AMEND THE ARTICLES OF ASSOCIATION, THE TEXT OF THE PROPOSED AMENDMENT TO THE ARTICLES OF ASSOCIATION SHALL BE INCLUDED IN THE NOTIFICATION. IN ADDITION, THIS TEXT WILL BE MADE AVAILABLE AT THE COMPANY'S OFFICES FOR INSPECTION BY SHAREHOLDERS FROM THE DAY THE MEETING IS CALLED UNTIL AFTER THE MEETING. LIQUIDATION ARTICLE 28 1. FOLLOWING THE DISSOLUTION OF THE COMPANY, THE LIQUIDATION WILL BE EFFECTED BY THE MANAGING DIRECTORS, UNLESS THE GENERAL MEETING RESOLVES OTHERWISE. 2. THE GENERAL MEETING DETERMINES THE REMUNERATION OF THE LIQUIDATORS. 3. DURING THE LIQUIDATION, THE PROVISIONS OF THE ARTICLES OF ASSOCIATION WILL REMAIN IN FORCE IN AS FAR AS POSSIBLE, SUCH THAT THE PROVISIONS ON THE BOARD OF MANAGING DIRECTORS APPLY TO THE LIQUIDATORS. 4. ANYTHING REMAINING AFTER PAYMENT TO THE CREDITORS IS PAID TO THE SHAREHOLDERS IN PROPORTION TO THE NUMBER OF SHARES THEY OWN. 5. THE BOOKS AND RECORDS OF THE COMPANY WILL REMAIN WITH THE PERSON APPOINTED FOR THIS PURPOSE BY THE GENERAL MEETING FOR THE PERIOD REQUIRED BY THE LAW. CONCLUDING DECLARATIONS THE APPEARER FURTHER DECLARED: - - THAT FOUR HUNDRED (400) SHARES OF THE AUTHORISED CAPITAL, NUMBERED 1 UP TO AND INCLUDING 400, EACH SHARE HAVING A PAR VALUE OF ONE HUNDRED DUTCH GUILDERS (NLG 100,=), HAVE BEEN PLACED WITH THE INCORPORATOR, SO THAT THE SUBSCRIBED CAPITAL AMOUNTS TO FORTY THOUSAND DUTCH GUILDERS (NLG. 40.000,=). - - THAT FOR THE BENEFIT OF THE COMPANY THE INCORPORATOR HAS AGREED TO PAY UP HIS SHARES IN FULL IN MONEY, WHICH PAYMENT HAS BEEN EFFECTED, WHICH APPEARS FROM THE STATEMENT TO BE ATTACHED TO THIS DEED AS REFERRED TO IN THE LAW, WHICH PAYMENT IS HEREBY ACCEPTED BY THE COMPANY. - - THAT PAYMENT IN FOREIGN CURRENCY IS PERMITTED. - - THAT THE INITIAL MANAGING DIRECTORS A SHALL BE: A. MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE, WARWICKSHIRE B96 6PA, UNITED KINGDOM, THATCHBROOK, SAMBOURNE LANE, BORN IN MANSFIELD, UNITED KINGDOM, ON THE FIFTH DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-NINE, OF BRITISH NATIONALITY, PASSPORT NUMBER 011822240; AND B. MR. JOHN BRYANT, RESIDING AT WIMBLEDON, SW19 7HT LONDON, UNITED KINGDOM, 105 HOME PARK ROAD, BORN IN CROYDON, UNITED KINGDOM, ON THE ELEVENTH DAY OF JUNE NINETEEN HUNDRED AND FORTY-SIX, OF BRITISH NATIONALITY, PASSPORT NUMBER 500223488; - - THAT THE INITIAL MANAGING DIRECTORS B SHALL BE: A. MR. PETER DEEGE, RESIDING AT (1311 HB) ALMERE, THE NETHERLANDS, MAURICE CHEVALIERSTRAAT 4, BORN IN ROTTERDAM, THE NETHERLANDS, ON THE NINTH DAY OF DECEMBER NINETEEN HUNDRED AND FIFTY, OF DUTCH NATIONALITY, PASSPORT NUMBER M017374; B. MR. JOHAN VAN BELLEN, RESIDING AT (3602 XK) MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN IN CURACAO, THE NETHERLANDS ANTILLES, ON THE TWENTY-FIRST DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-THREE, OF DUTCH NATIONALITY, PASSPORT NUMBER N11859491; C. MR. HENDRIK JUSTUS WIRIX, RESIDING AT (1191 EW) OUDERKERK AAN DEN AMSTEL, THE NETHERLANDS, H. VAN AVERCAMPWEG 25, BORN IN ARNHEM, THE NETHERLANDS, ON THE THIRD DAY OF MAY NINETEEN HUNDRED AND FORTY-SEVEN, OF DUTCH NATIONALITY, PASSPORT NUMBER L273346; AND D. MR. LOUIS FRICOT, RESIDING AT (1181 RP) AMSTELVEEN, THE NETHERLANDS, CHARLOTTE VAN MONTPENSIERLAAN 73, BORN IN HULST, THE NETHERLANDS, ON THE SIXTEENTH DAY OF APRIL NINETEEN HUNDRED AND FORTY-ONE, OF DUTCH NATIONALITY, PASSPORT NUMBER L286090. - - THAT THE FIRST OFFICE ADDRESS OF THE COMPANY SHALL BE: (1077 ZX) AMSTERDAM-ZUIDOOST, THE NETHERLANDS, STRAWINSKYLAAN 3105. - - THAT THE FIRST FINANCIAL YEAR SHALL END ON THE THIRTY-FIRST DAY OF DECEMBER, NINETEEN HUNDRED AND NINETY-NINE. - - THAT THE MINISTERIAL DECLARATION OF NON-OBJECTION, AS REFERRED TO IN ARTICLE 2:175 OF THE DUTCH CIVIL CODE WAS GRANTED ON THE FIRST DAY OF MARCH, NINETEEN HUNDRED AND NINETY-NINE, UNDER NUMBER B.V. 1064830 AND IS ATTACHED TO THIS DEED. POWER OF ATTORNEY THE AFOREMENTIONED POWER OF ATTORNEY APPEAR SUFFICIENTLY, TO ME, CIVIL LAW NOTARY, FROM ONE (1) PRIVATE DEED, FAX COPY OF WHICH POWER OF ATTORNEY WILL BE ATTACHED TO THIS DEED. THE APPEARER IS KNOWN TO ME, CIVIL LAW NOTARY, AND THE IDENTITY OF THE APPEARER HAS BEEN ESTABLISHED BY ME, CIVIL LAW NOTARY, BY MEANS OF THE ABOVEMENTIONED IDENTITY DOCUMENT. WHEREOF AN ORIGINAL DEED WAS EXECUTED IN ROTTERDAM ON THE DATE STATED ABOVE. AFTER THE CONTENTS OF THIS DEED HAVE BEEN STATED TO THE APPEARER AND SHE DECLARED THAT SHE HAD NOTED THE CONTENTS OF THE DEED AND DID NOT DESIRE THE DEED TO BE READ OUT FULL, AFTER BEING READ OUT IN PART, THIS DEED WAS IMMEDIATELY SIGNED BY APPEARER AND ME, CIVIL LAW NOTARY. (SIGNED: S. TULTAK; S. VAN DER WAAL). ISSUED FOR TRUE COPY EX-99 48 0048.txt CERTIFICATE OF INC. CINERGY GLOBAL BAGHABARI I Cinergy/diversen/certificate/baghabariI.doc PB/ST MID81450/007 CERTIFICATE OF INCORPORATION WITH RESPECT TO CINERGY GLOBAL BAGHABARI I B.V. The undersigned, Mr Pieter Heyme Bolland, civil law notary, officiating in Rotterdam, the Netherlands, declares that: 1. Cinergy Global Baghabari I B.V. - hereinafter referred to as: the "Company" - is a private company with limited liability, organised under the laws of the Netherlands, having its registered office at Amsterdam, the Netherlands, and having its offices at 1077 ZX Amsterdam, the Netherlands, Strawinskylaan 3105, 7Th Floor, and being registered in the Traderegister of the Chamber of Commerce in Amsterdam, the Netherlands, under number 34.113.954; the Company has been incorporated by notarial deed of incorporation executed on the 5Th day of March, 1999; 2. according to the registration of the aforementioned Chamber of Commerce, the articles of association of the Company have been adopted by deed of incorporation, executed before a substitute of Mr. P.H. Bolland, civil law notary, officiating in Rotterdam, the Netherlands, on the 5TH day of March, 1999. The articles of association have not been amended since; 3. according to article 2 of an unofficial English office translation of the recent articles of association of the Company, the objects of the Company are: a. to finance enterprises and companies; b. to borrow, to lend and to raise funds, including the issue of bonds, promissory notes or other securities or evidence of indebtedness as well as to enter into agreements in connection with the aforementioned; c. to supply advice and to render services to enterprises and companies with which the company forms a group and to third parties; d. to render guarantees, to bind the company and to pledge its assets for obligations of the companies and enterprises with which it forms a group and on behalf of third parties; e. to incorporate, to participate in any way whatsoever, to manage, to supervise, to operate and to promote enterprises, companies and businesses; f. to obtain, alienate, manage and exploit registered property and items of property in general; g. to trade in currencies, securities and items of property in general; h. to develop and trade in patent, trade marks, licenses, know-how and other industrial propertyrights; i. to perform any and all activity of industrial, financial or commercial nature; as well as everything pertaining to the foregoing, relating thereto or conducive thereto, all in the widest sense of the word. 4. according to the registration of the aforementioned Chamber of Commerce, the following natural persons are managing director of the Company: - Mr. John Bryant, residing at Wimbledon SW19 7ht, United Kingdom, 105 Home Park Road, born at London, United Kingdom, on the 11th day of June, 1946, of British nationality, managing director A; - Mr. Andrew Mark Turk, residing at Sambourne Warwickshire, United Kingdom, Sambourne Lane, born at Mansfield, United Kingdom, on the 5th day of August, 1959, of British nationality, managing director A; - Mr. Louis Fricot, residing at 1181 RP Amstelveen, the Netherlands, C. van Montpensierlaan 73, born at Hulst, the Netherlands, on the 16th day of April, 1941, of Dutch nationality, managing director B; - Mr. Johan van Bellen, residing at 3602 XK Maarssen, the Netherlands, Ijsvogel 27, born at Willemstad, Curacao, the Netherlands Antilles, on the 21st day of August, 1953, of Dutch nationality, managing director B; - Mr. Paul van Baarle, residing at 3013 AL Rotterdam, the Netherlands, Weena 399 d, born at Rotterdam, the Netherlands, on the 15th day of September, 1958, of Dutch nationality, managing director B; - Mr. Nanno Steven van der Werff, residing at 1013 GD Amsterdam, the Netherlands, Binnen Vissersstraat 14-4, born at Leeuwarden, the Netherlands, on the 18th day of September, 1964, of Dutch nationality, managing director B; 5. according to the articles of association of the Company, the Company is represented at law and otherwise by the board of management, and by each managing director A acting jointly with a managing director B. Signed at Rotterdam on April 17, 2000. EX-99 49 0049.txt CERTIF. OF INC.OF BAGHABARI POWER COMPANY LIMITED CERTIFICATE OF INCORPORATION ------------ NO: C-37439(1739)/99 I hereby certify that Baghabari Power Company Limited is this day incorporated under the Companies Act (Act XVIII) of 1994 and that theCompany is Limited. Given under my hand at dhaka this eighteenth day of march one thousand nine hundred and ninety-nine .............................. REGISTRAR OF JOINT STOCK COMPANIES BANGLADESH J.S C-34 D.G.P.:97/98-18023F - 15,000 COPIES (C-35) 1997. EX-99 50 0050.txt CINERGY GLOBAL BAGHABARI II DEED OF INCORPORATION Cinergy/documenten/oprichting2/opricheng PB/ST/sm MID81450/004 OFFICE TRANSLATION OF THE DEED OF INCORPORATION OF CINERGY GLOBAL BAGHABARI II B.V., HAVING ITS REGISTERED OFFICE AT AMSTERDAM THE NETHERLANDS ON THE FIFTH DAY OF MARCH, NINETEEN HUNDRED NINETY-NINE, THERE APPEARED BEFORE ME, MR. STEVEN VAN DER WAAL, DEPUTY CIVIL LAW NOTARY, LIVING AT THE HAGUE, HEREINAFTER TO BE REFERRED TO AS: "CIVIL LAW NOTARY", AS SUBSTITUTE OF MR. PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM: SERAP TULTAK, LAWYER, RESIDING AT (3035 HM) ROTTERDAM, THE NETHERLANDS, ZAAGMOLENSTRAAT 206, BORN AT ISKENDERUN, TURKEY, ON THE NINETEENTH DAY OF OCTOBER NINETEEN HUNDRED AND SIXTY-EIGHT, NEITHER MARRIED NOR REGISTERED PARTNER, OF DUTCH NATIONALITY, PASSPORT NUMBER N07957495, ACTING FOR THE PURPOSES HEREOF AS WRITTEN ATTORNEY OF THE COMPANY ORGANISED UNDER THE LAWS OF THE NETHERLANDS: CINERGY HOLDINGS B.V., HAVING ITS REGISTERED OFFICE AMSTERDAM, THE NETHERLANDS, AND WITH OFFICES AT (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. THE APPEARER STATED THAT SAID PROXY BY THIS DEED INCORPORATES A PRIVATE LIMITED LIABILITY COMPANY WITH ENACTMENT OF THE FOLLOWING ARTICLES OF ASSOCIATION. NAME AND DOMICILE ARTICLE 1 1. THE NAME OF THE COMPANY IS: CINERGY GLOBAL BAGHABARI II B.V. 2. THE COMPANY HAS ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS. OBJECT ARTICLE 2 THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTY RIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. CAPITAL AND SHARES ARTICLE 3 1. THE AUTHORISED CAPITAL AMOUNTS TO TWO HUNDRED THOUSAND DUTCH GUILDERS (NLG 200.000,=), DIVIDED INTO TWO THOUSAND (2,000) SHARES, NUMBERED 1 UP TO AND INCLUDING 2,000, EACH SHARE HAVING A PAR VALUE OF ONE HUNDRED DUTCH GUILDERS (NLG 100,=). 2. THE SHARES SHALL BE REGISTERED SHARES. 3. NO SHARE CERTIFICATE SHALL BE ISSUED. 4. THE ISSUANCE OF SHARES, ALIENATION OF SHARES IN THE CAPITAL OF THE COMPANY BY THE COMPANY, AS WELL AS THE GRANTING OF RIGHTS TO SUBSCRIBE FOR THESE SHARES, SHALL BE EFFECTED BY THE BOARD OF MANAGEMENT PURSUANT TO A RESOLUTION OF THE GENERAL MEETING OF SHAREHOLDERS, - HEREINAFTER REFERRED TO AS: "THE GENERAL MEETING" - , WHICH RESOLUTION SHALL LAY DOWN THE DATE OF ISSUE, THE NUMBER OF SHARES TO BE ISSUED, AS WELL AS THE OTHER CONDITIONS, UNDER THE PROVISO THAT THE SHARES ARE NOT ISSUED BELOW PAR. 5. THE GENERAL MEETING MAY DELEGATE ITS POWERS TO PASS RESOLUTIONS REFERRED TO IN THE PRECEDING PARAGRAPH TO ANOTHER CORPORATE BODY AND MAY REVOKE SUCH DELEGATION. 6. ON THE ISSUANCE OF SHARES, EACH SHAREHOLDER SHALL HAVE A PRE-EMPTIVE RIGHT PRO RATA TO THE AGGREGATE AMOUNT OF HIS SHARES, SUBJECT TO LEGAL PROVISIONS. THE PRE-EMPTIVE RIGHT SHALL NOT BE TRANSFERABLE. 7. THE SHARES SHALL ONLY BE ISSUED AGAINST PAYMENT IN FULL. 8. THE COMPANY MAY GRANT LOANS FOR THE SUBSCRIPTION OR ACQUISITION OF SHARES IN THE CAPITAL OF THE COMPANY, BUT ONLY TO THE EXTENT OF ITS DISTRIBUTABLE RESERVES. USUFRUCT AND RIGHT OF PLEDGE ON SHARES ARTICLE 4 1. A RIGHT OF USUFRUCT OR PLEDGE MAY BE ESTABLISHED ON THE SHARES OF THE COMPANY. 2. USUFRUCTUARIES AND PLEDGEES HAVE NO VOTING RIGHTS. 3. USUFRUCTUARIES AND PLEDGEES DO NOT HAVE THE RIGHTS GRANTED BY LAW TO HOLDERS OF DEPOSITARY RECEIPTS FOR SHARES ISSUED WITH THE CO-OPERATION OF THE COMPANY. DEPOSITARY RECEIPTS FOR SHARES ARTICLE 5 1. THE COMPANY WILL NOT CO-OPERATE WITH THE ISSUE OF DEPOSITARY RECEIPTS FOR SHARES. 2. NO BEARER SHARE-CERTIFICATES MAY BE ISSUED. REGISTER OF SHAREHOLDERS ARTICLE 6 1. THE BOARD OF MANAGING DIRECTORS WILL KEEP A REGISTER WHICH CONTAINS: A. THE NAMES AND ADDRESSES OF SHAREHOLDERS; B. THE AMOUNT PAID ON EACH SHARE; C. THE NAMES AND ADDRESSES OF THOSE WHO HAVE A RIGHT OF USUFRUCT OR PLEDGE; D. EACH RELEASE OF LIABILITY FOR PAYMENT DUE ON SHARES. 2. THE REGISTER MUST BE REGULARLY UPDATED. 3. EACH SHAREHOLDER IS OBLIGED TO ENSURE THAT HIS ADDRESS IS KNOWN TO THE COMPANY. 4. IF REQUESTED, THE BOARD OF MANAGING DIRECTORS WILL, FREE OF CHARGE, PROVIDE A SHAREHOLDER, A USUFRUCTUARY OR PLEDGEE WITH AN EXTRACT FROM THE REGISTER WITH RESPECT TO HIS RIGHTS TO A SHARE. 5. THE BOARD OF MANAGING DIRECTORS MAKES THE REGISTER AVAILABLE FOR INSPECTION BY SHAREHOLDERS AT THE COMPANY'S OFFICES. SHARES IN JOINT-OWNERSHIP ARTICLE 7 1. IF SHARES ARE JOINTLY OWNED, THE PERSONS ENTITLED TO THESE SHARES MAY ONLY EXERCISE THE RIGHTS ATTACHED TO THESE SHARES IF THEY ARE REPRESENTED FOR THIS PURPOSE VIS-A-VIS THE COMPANY BY A PERSON APPOINTED BY THEM IN WRITING OR BY THE JUDGE. 2. THE NAME AND ADDRESS OF THIS REPRESENTATIVE ARE ENTERED IN THE REGISTER OF SHAREHOLDERS. TRANSFER OF SHARES ARTICLE 8 1. EACH TRANSFER OF SHARES NEEDS THE APPROVAL OF THE GENERAL MEETING. 2. THE APPLICATION FOR APPROVAL MUST BE DIRECTED TO THE COMPANY, STATING THE NUMBER OF SHARES INVOLVED AND THE NAME OF THE PERSON TO WHICH THE APPLICANT INTENTS TO TRANSFER THE SHARE(S). 3. THE APPROVAL IS SUPPOSED TO BE GRANTED: A. IF NO DECISION IS TAKEN WITHIN THIRTY DAYS; B. IF IN CASE THE APPROVAL IS DENIED, NO OTHERS ARE APPOINTED WHO ARE WILLING AND ABLE TO BUY ALL SHARES THE APPLICATION REFERS TO AGAINST PAYMENT IN CASH OF THE PRICE AT WHICH THE SHARES WILL BE VALUED BY ONE OR MORE EXPERTS. 4. THE TRANSFER OF THE SHARES CAN ONLY TAKE PLACE WITHIN THREE MONTHS AFTER THE APPROVAL HAS BEEN GRANTED OR IS SUPPOSED TO BE GRANTED. 5. THE COMPANY CAN ONLY BE APPOINTED AS PERSON WILLING TO BUY THE SHARES WITH THE AGREEMENT OF THE APPLICANT. 6. IF THE APPLICANT ACCEPTS THE PERSON(S) WILLING TO BUY THE SHARES ON OFFER, THE PRICE OF THE SHARES WILL BE DETERMINED BY THE COMPANY ACCOUNTANT IF HE IS AN INDEPENDENT ACCOUNTANT AND OTHERWISE BY AN EXPERT APPOINTED BY THE COURT (KANTONRECHTER) WITHIN WHOSE DISTRICT THE COMPANY IS STATUTARILY ESTABLISHED, UNLESS THE PARTIES AGREE OTHERWISE. 7. THE APPLICANT MAKING THE OFFER IS ENTITLED TO WITHDRAW HIS OFFER WITHIN A MONTH AFTER BEING INFORMED OF THE PERSON(S) WILLING TO BUY THE SHARES AND THE PRICE. 8. THE APPLICATION FOR APPROVAL AND ALL NOTIFICATIONS REFERRED TO IN THIS ARTICLE MUST BE SEND BY REGISTERED MAIL UNLESS ALL SHAREHOLDERS AGREE UNANIMOUSLY OTHERWISE. ACQUISITION OF OWN SHARES ARTICLE 9 1. THE COMPANY MAY ONLY ACQUIRE SHARES IN ITS OWN CAPITAL FREE OF CHARGE, OR IF ALL OF THE FOLLOWING PROVISIONS ARE COMPLIED WITH: A. THE COMPANY'S OWN EQUITY MINUS THE ACQUISITION PRICE IS NOT SMALLER THAN THE PAID-IN AND CALLED UP PART OF THE SHARE CAPITAL PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW; B. THE NOMINAL AMOUNT OF THE SHARES IN ITS CAPITAL TO BE ACQUIRED AND THOSE ALREADY HELD BY THE COMPANY AND ITS SUBSIDIARIES DOES NOT AMOUNT TO MORE THAN HALF OF THE SUBSCRIBED CAPITAL; C. AUTHORISATION FOR THE ACQUISITION HAS BEEN GRANTED BY THE GENERAL MEETING OR BY ANOTHER COMPANY BODY APPOINTED BY IT. 2. THE AMOUNT OF THE COMPANY'S OWN CAPITAL ACCORDING TO THE MOST RECENTLY ADOPTED BALANCE SHEET, MINUS THE ACQUISITION PRICE FOR THE SHARES IN THE COMPANY'S CAPITAL, AND MINUS THE DISTRIBUTIONS OUT OF THE PROFITS OR RESERVES TO OTHERS WHICH WERE OWED BY THE COMPANY AND ITS SUBSIDIARIES AFTER THE DATE THE BALANCE WAS ADOPTED, DETERMINES THE VALIDITY OF THE ACQUISITION. IF MORE THAN SIX MONTHS HAVE PASSED AFTER A CLOSE OF THE FINANCIAL YEAR WITHOUT ANNUAL ACCOUNTS HAVING BEEN ADOPTED, THE ACQUISITION IN ACCORDANCE WITH PARAGRAPH 1 IS NOT PERMITTED. 3. THE PREVIOUS PARAGRAPHS DO NO APPLY TO SHARES ACQUIRED BY THE COMPANY BY OPERATION OF LAW. 4. ACQUISITION BY THE COMPANY OF NOT FULLY PAID-UP SHARES IN HER OWN CAPITAL IS VOID. ISSUE AND TRANSFER OF SHARES ARTICLE 10 1. FOR ISSUE OF SHARES AFTER INCORPORATION OR FOR THE TRANSFER OF SHARES OR FOR THE CREATION OR TRANSFER OF A LIMITED RIGHT THEREON, A NOTARIAL DEED IS REQUIRED. 2. UNLESS THE COMPANY HERSELF IS A PARTY TO THE TRANSFER, THE RIGHTS ATTACHED TO THE SHARES MAY NOT BE EXERCISED BEFORE THE ACKNOWLEDGEMENT BY THE COMPANY - WHETHER OF NO OF HER OWN ACCORD - OF THE TRANSFER, OR BEFORE THE TRANSFER HAS BEEN SERVED TO THE COMPANY. MANAGEMENT ARTICLE 11 1. THE COMPANY IS MANAGED BY A BOARD OF MANAGEMENT, CONSISTING OF AT LEAST ONE OR MORE MANAGING DIRECTORS A AND AT LEAST ONE OR MORE MANAGING DIRECTORS B. 2. THE GENERAL MEETING DETERMINES THE NUMBER OF MANAGING DIRECTORS A AND MANAGING DIRECTORS B. MANAGING DIRECTORS B NEED TO BE RESIDENTS OF THE NETHERLANDS. 3. IF A VACANCY ARISES IN THE BOARD OF MANAGING DIRECTORS, THE BOARD OF MANAGING DIRECTORS RETAINS ITS POWERS. 4. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ONE OR MORE DIRECTORS B, THE GENERAL MEETING WILL - WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE - MAKE TEMPORARILY PROVISIONS. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ALL THE DIRECTORS, OR OF THE SOLE DIRECTOR, THE GENERAL MEETING WILL, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE, MAKE TEMPORARILY PROVISIONS. APPOINTMENT, DISMISSAL AND SALARIES OF MANAGING DIRECTORS ARTICLE 12 1. THE MANAGING DIRECTORS ARE APPOINTED BY THE GENERAL MEETING. 2. THE GENERAL MEETING WILL DETERMINE THE SALARIES AND OTHER CONDITIONS OF EMPLOYMENT OF EVERY MANAGING DIRECTOR. 3. MANAGING DIRECTORS MAY BE SUSPENDED OR DISMISSED BY THE GENERAL MEETING AT ANY TIME. 4. THE BOARD OF MANAGING DIRECTORS ADOPT A CHARTER, SETTING OUT RULES ON THE DECISION MAKING PROCESS OF THE BOARD OF MANAGING DIRECTORS. THE CHARTER REQUIRES THE APPROVAL OF THE GENERAL MEETING. 5. THE BOARD OF MANAGING DIRECTORS MAY ADOPT AN ALLOCATION OF DUTIES STATING FOR WHICH DUTY EACH MANAGING DIRECTOR HAS A PRIME RESPONSIBILITY. SUCH ALLOCATION OF DUTIES REQUIRES THE APPROVAL OF THE GENERAL MEETING. 6. THE BOARD OF MANAGEMENT MEETS AS OFTEN AS THE BOARD DEEMS NECESSARY. VALID RESOLUTIONS MAY ONLY BE ADOPTED BY THE BOARD OF MANAGEMENT IF AT LEAST ONE DIRECTOR A AND TWO DIRECTORS B ARE PRESENT. ALL RESOLUTIONS OF THE BOARD OF MANAGEMENT ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST. THE BOARD OF MANAGEMENT MAY ALSO ADOPT BOARD RESOLUTIONS BY TELEPHONE OR TELEX, OR ANY OTHER PROPER MEANS OF COMMUNICATION (INTERNET, E-MAIL). APPROVAL OF MANAGEMENT DECISIONS ARTICLE 13 1. THE GENERAL MEETING MAY SUBMIT RESOLUTIONS OF THE BOARD OF MANAGING DIRECTORS TO ITS APPROVAL. SUCH RESOLUTIONS ARE TO BE CLEARLY DEFINED AND NOTIFIED IN WRITING TO THE BOARD OF MANAGING DIRECTORS. 2. THE APPROVAL REFERRED TO IN THE PREVIOUS PARAGRAPH DOES NOT HAVE TO BE GIVEN FOR EACH INDIVIDUAL CASE IF IT HAS BEEN GRANTED IN A GENERAL SENSE. 3. THE BOARD OF MANAGING DIRECTORS HAS TO ACT IN ACCORDANCE WITH THE DIRECTIONS OF THE GENERAL MEETING CONCERNING THE FINANCIAL, ECONOMICAL, SOCIAL AND PERSONNEL MANAGEMENT. REPRESENTATION OF THE COMPANY ARTICLE 14 1. THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. 2. IF THE COMPANY HAS CONFLICTING INTERESTS WITH ONE OR MORE MANAGING DIRECTORS, THE COMPANY MAY, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1 OF THIS ARTICLE, STILL BE REPRESENTED BY THAT MANAGING DIRECTOR. THE GENERAL MEETING IS ALWAYS EMPOWERED TO APPOINT ONE OR MORE PERSONS FOR THIS PURPOSE. 3. LEGAL ACTS BETWEEN THE COMPANY AND THE HOLDER OF ALL THE SHARES IN THE CAPITAL OF THE COMPANY HAVE TO BE LAID DOWN IN WRITING IF THE COMPANY HAS BEEN REPRESENTED BY THE SHAREHOLDER. THE OBLIGATION TO LAY DOWN THE LEGAL ACT IN WRITING ALSO APPLIES IF THE COMPANY IS REPRESENTED BY A PERSON WHO IS ENTITLED TO A MATRIMONIAL COMMUNITY OF GOODS OF WHICH ALL SHARES ARE A PART. 4. FOR THE APPLICATION OF PARAGRAPH 3, SHARES HELD BY THE COMPANY OR ITS SUBSIDIARIES ARE NOT TAKEN INTO ACCOUNT. PARAGRAPH 3 DOES NOT APPLY IF THE LEGAL ACTS, AND THEIR CONDITIONS AS AGREED ON, ARE PART OF THE CUSTOMARY CONDUCT OF THE BUSINESS OF THE COMPANY. GENERAL MEETING ARTICLE 15 1. THE ANNUAL GENERAL MEETING IS HELD NO MORE THAN SIX MONTHS AFTER THE END OF THE FINANCIAL YEAR. 2. THE AGENDA OF THAT MEETING WILL CONTAIN AT LEAST THE FOLLOWING POINTS: A. THE ANNUAL REPORT; B. ADOPTION OF THE ANNUAL ACCOUNTS; C. DETERMINATION OF THE DISTRIBUTION OF PROFITS. 3. EXTRAORDINARY GENERAL MEETINGS ARE HELD WHENEVER ONE OF THE MANAGING DIRECTORS CONSIDERS THIS DESIRABLE, OR ONE OR MORE SHAREHOLDERS, COLLECTIVELY REPRESENTING AT LEAST ONE TENTH OF THE ISSUED SHARE CAPITAL, REQUEST THIS IN WRITING, DETAILING THE SUBJECTS TO BE DEALT WITH. PLACE AND CALLING OF THE MEETING ARTICLE 16 1. THE GENERAL MEETINGS WILL BE HELD IN AMSTERDAM, ROTTERDAM, THE HAGUE OR HAARLEMMERMEER (SCHIPHOL AIRPORT). 2. ALL THE SHAREHOLDERS MUST BE NOTIFIED OF A GENERAL MEETING. 3. THE GENERAL MEETING IS CALLED BY THE BOARD OF MANAGING DIRECTORS BY LETTERS SENT TO THE ADDRESSES STATED IN THE REGISTER OF SHAREHOLDERS. 4. THE LETTERS CONTAIN THE TIME AND PLACE OF THE GENERAL MEETING, AS WELL AS THE SUBJECTS TO BE DEALT WITH. 5. THE GENERAL MEETING WILL BE CALLED NO LATER THAN FIFTEEN DAYS BEFORE THE DAY OF THE GENERAL MEETING. CHAIRMANSHIP ARTICLE 17 THE GENERAL MEETING CHOOSES ITS OWN CHAIRMAN. MINUTES ARTICLE 18 1. MINUTES OF THE BUSINESS OF THE GENERAL MEETING SHALL BE DRAWN UP, WHICH ARE SIGNED BY THE CHAIRMAN OF THE GENERAL MEETING AND BY A PERSON APPOINTED BY HIM. 2. IF AN OFFICIAL RECORD OF THE BUSINESS OF THE GENERAL MEETING IS DRAWN UP BY A NOTARY, IT SUFFICES FOR THE CHAIRMAN OF THE GENERAL MEETING TO CO-SIGN THIS. RIGHTS RELATED TO THE MEETING ARTICLE 19 1. EACH SHAREHOLDER IS ENTITLED TO ATTEND AND SPEAK AT THE GENERAL MEETING. 2. EACH SHAREHOLDER MAY BE REPRESENTED AT THE GENERAL MEETING BY SOMEONE AUTHORISED IN WRITING. DECISION MAKING ARTICLE 20 1. EACH SHARE CONFERS THE RIGHT TO CAST ONE VOTE. 2. ALL RESOLUTIONS ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST, UNLESS THESE ARTICLES OF ASSOCIATION REQUIRE A LARGER MAJORITY. 3. BLANK VOTES AND INVALID VOTES ARE CONSIDERED NOT TO HAVE BEEN CAST. 4. VOTING ON BUSINESS MATTERS OCCURS ORALLY; VOTING ON PERSONS TAKES PLACE IN WRITING BY UNSIGNED BALLOT. 5. IN THE CASE OF A TIE IN VOTES ON BUSINESS MATTERS, THE PROPOSAL HAS BEEN REJECTED. 6. IF NO ONE HAS ACQUIRED AN ABSOLUTE MAJORITY IN A VOTE ON PERSONS IN THE FIRST VOTE, A NEW, FREE VOTE IS HELD. IF AGAIN THERE IS NO ABSOLUTE MAJORITY, THERE IS ANOTHER VOTE BETWEEN THE TWO PERSONS WHO OBTAINED THE MOST VOTES BETWEEN THEM IN THE SECOND VOTE. IF NECESSARY, AN INTERIM VOTE IS HELD TO DECIDE BETWEEN WHICH TWO PERSONS THE NEW VOTE WILL BE HELD. IN THE CASE OF A TIE IN VOTES AFTER THE NEW VOTE LOTS WILL BE DRAWN BY THE CHAIRMAN OF THE GENERAL MEETING TO REACH A DECISION. 7. ALL PROPOSALS MAY BE ACCEPTED BY ACCLAMATION IF NONE OF THE PERSONS ENTITLED TO VOTE OPPOSES THIS. 8. NO VOTE MAY BE CAST IN THE GENERAL MEETING FOR A SHARE WHICH IS HELD BY THE COMPANY OR BY A SUBSIDIARY COMPANY. 9. IN DETERMINING TO WHAT EXTENT THE SHAREHOLDERS ARE VOTING, ATTENDING OR REPRESENTED, OR TO WHAT EXTENT THE SHARE CAPITAL IS MADE AVAILABLE OR REPRESENTED, THE SHARES FOR WHICH THE LAW STATES THAT NO VOTE CAN BE CAST, ARE NOT TAKEN INTO ACCOUNT. DECISION-MAKING WHEN THE ENTIRE SUBSCRIBED CAPITAL IS PRESENT ARTICLE 21 THE GENERAL MEETING MAY ADOPT RESOLUTIONS REGARDING ALL SUBJECTS WHICH ARISE, PROVIDED THAT THERE IS AN UNANIMOUS VOTE, IF ALL THE SHAREHOLDERS ARE PRESENT, EVEN IF THE PROVISIONS ON THE PLACE AND CALLING OF THE GENERAL MEETING HAVE NOT BEEN COMPLIED WITH. DECISION-MAKING WITHOUT CALLING A GENERAL MEETING ARTICLE 22 SHAREHOLDERS MAY ALSO ADOPT RESOLUTIONS WITHOUT CALLING A GENERAL MEETING, PROVIDED THAT ALL THE SHAREHOLDERS HAVE DECLARED TO BE IN FAVOUR OF THE PROPOSAL IN WRITING, BY TELEGRAPH, TELEX OR FAX. FINANCIAL YEAR ARTICLE 23 THE FINANCIAL YEAR COINCIDES WITH THE CALENDAR YEAR. ANNUAL ACCOUNTS ARTICLE 24 1. THE BOARD OF MANAGING DIRECTORS WILL DRAW UP THE ANNUAL ACCOUNTS, CONSISTING OF THE BALANCE SHEETS AND A PROFIT AND LOSS ACCOUNT, WITH AN EXPLANATION THERETO, WITHIN FIVE MONTHS OF THE END OF THE FINANCIAL YEAR, UNLESS THIS PERIOD HAS BEEN EXTENDED BY THE GENERAL MEETING FOR A MAXIMUM OF SIX MONTHS ON GROUNDS OF SPECIAL CIRCUMSTANCES. 2. THE ANNUAL ACCOUNTS ARE SIGNED BY ALL MANAGING DIRECTORS; IF ANY SIGNATURE IS MISSING, THE REASON FOR THIS IS STATED. DISCHARGE OF THE MANAGEMENT ARTICLE 25 THE UNCONDITIONAL ADOPTION OF THE ANNUAL ACCOUNTS BY THE GENERAL MEETING DISCHARGES, SUBJECT TO LEGAL LIMITATIONS, THE MANAGING DIRECTORS FOR THEIR MANAGEMENT FOR THE FINANCIAL YEAR CONCERNED. DIVIDEND ARTICLE 26 1. THE PROFIT IS ENTIRELY AT THE DISPOSAL OF THE GENERAL MEETING. 2. THE COMPANY MAY ONLY MAKE DISTRIBUTIONS TO SHAREHOLDERS AND OTHERS ENTITLED TO PROFITS, IN AS FAR AS ITS EQUITY IS LARGER THAN THE PAID-UP AND CALLED PART OF THE CAPITAL, PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW. 3. DISTRIBUTION OF PROFITS OCCURS AFTER THE ANNUAL ACCOUNTS HAVE BEEN ADOPTED, EVIDENCING THAT SUCH IS JUSTIFIED. 4. THE COMPANY MAY ONLY MAKE INTERIM DISTRIBUTIONS IF THE PROVISIONS OF PARAGRAPH 2 HAVE BEEN COMPLIED WITH. 5. NO PROFIT IS PAID ON SHARES TO THE COMPANY. 6. THE CLAIM TO DIVIDEND EXPIRES AFTER FIVE YEARS. AMENDMENTS TO THE ARTICLES OF ASSOCIATION AND DISSOLUTION OF THE COMPANY ARTICLE 27 1. A RESOLUTION TO AMEND THE ARTICLES OF ASSOCIATION, OR TO DISSOLVE THE COMPANY, MAY ONLY BE ADOPTED BY THE GENERAL MEETING. 2. IN CALLING A GENERAL MEETING IN WHICH THERE SHALL BE DEALT WITH A PROPOSAL TO AMEND THE ARTICLES OF ASSOCIATION, THE TEXT OF THE PROPOSED AMENDMENT TO THE ARTICLES OF ASSOCIATION SHALL BE INCLUDED IN THE NOTIFICATION. IN ADDITION, THIS TEXT WILL BE MADE AVAILABLE AT THE COMPANY'S OFFICES FOR INSPECTION BY SHAREHOLDERS FROM THE DAY THE MEETING IS CALLED UNTIL AFTER THE MEETING. LIQUIDATION ARTICLE 28 1. FOLLOWING THE DISSOLUTION OF THE COMPANY, THE LIQUIDATION WILL BE EFFECTED BY THE MANAGING DIRECTORS, UNLESS THE GENERAL MEETING RESOLVES OTHERWISE. 2. THE GENERAL MEETING DETERMINES THE REMUNERATION OF THE LIQUIDATORS. 3. DURING THE LIQUIDATION, THE PROVISIONS OF THE ARTICLES OF ASSOCIATION WILL REMAIN IN FORCE IN AS FAR AS POSSIBLE, SUCH THAT THE PROVISIONS ON THE BOARD OF MANAGING DIRECTORS APPLY TO THE LIQUIDATORS. 4. ANYTHING REMAINING AFTER PAYMENT TO THE CREDITORS IS PAID TO THE SHAREHOLDERS IN PROPORTION TO THE NUMBER OF SHARES THEY OWN. 5. THE BOOKS AND RECORDS OF THE COMPANY WILL REMAIN WITH THE PERSON APPOINTED FOR THIS PURPOSE BY THE GENERAL MEETING FOR THE PERIOD REQUIRED BY THE LAW. CONCLUDING DECLARATIONS THE APPEARER FURTHER DECLARED: - - THAT FOUR HUNDRED (400) SHARES OF THE AUTHORISED CAPITAL, NUMBERED 1 UP TO AND INCLUDING 400, EACH SHARE HAVING A PAR VALUE OF ONE HUNDRED DUTCH GUILDERS (NLG 100,=), HAVE BEEN PLACED WITH THE INCORPORATOR, SO THAT THE SUBSCRIBED CAPITAL AMOUNTS TO FORTY THOUSAND DUTCH GUILDERS (NLG. 40.000,=). - - THAT FOR THE BENEFIT OF THE COMPANY THE INCORPORATOR HAS AGREED TO PAY UP HIS SHARES IN FULL IN MONEY, WHICH PAYMENT HAS BEEN EFFECTED, WHICH APPEARS FROM THE STATEMENT TO BE ATTACHED TO THIS DEED AS REFERRED TO IN THE LAW, WHICH PAYMENT IS HEREBY ACCEPTED BY THE COMPANY. - - THAT PAYMENT IN FOREIGN CURRENCY IS PERMITTED. - - THAT THE INITIAL MANAGING DIRECTORS A SHALL BE: A. MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE, WARWICKSHIRE B96 6PA, UNITED KINGDOM, THATCHBROOK, SAMBOURNE LANE, BORN IN MANSFIELD, UNITED KINGDOM, ON THE FIFTH DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-NINE, OF BRITISH NATIONALITY, PASSPORT NUMBER 011822240; AND B. MR. JOHN BRYANT, RESIDING AT WIMBLEDON, SW19 7HT LONDON, UNITED KINGDOM, 105 HOME PARK ROAD, BORN IN CROYDON, UNITED KINGDOM, ON THE ELEVENTH DAY OF JUNE NINETEEN HUNDRED AND FORTY-SIX, OF BRITISH NATIONALITY, PASSPORT NUMBER 500223488; - - THAT THE INITIAL MANAGING DIRECTORS B SHALL BE: A. MR. PETER DEEGE, RESIDING AT (1311 HB) ALMERE, THE NETHERLANDS, MAURICE CHEVALIERSTRAAT 4, BORN IN ROTTERDAM, THE NETHERLANDS, ON THE NINTH DAY OF DECEMBER NINETEEN HUNDRED AND FIFTY, OF DUTCH NATIONALITY, PASSPORT NUMBER M017374; B. MR. JOHAN VAN BELLEN, RESIDING AT (3602 XK) MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN IN CURACAO, THE NETHERLANDS ANTILLES, ON THE TWENTY-FIRST DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-THREE, OF DUTCH NATIONALITY, PASSPORT NUMBER N11859491; C. MR. HENDRIK JUSTUS WIRIX, RESIDING AT (1191 EW) OUDERKERK AAN DEN AMSTEL, THE NETHERLANDS, H. VAN AVERCAMPWEG 25, BORN IN ARNHEM, THE NETHERLANDS, ON THE THIRD DAY OF MAY NINETEEN HUNDRED AND FORTY-SEVEN, OF DUTCH NATIONALITY, PASSPORT NUMBER L273346; AND D. MR. LOUIS FRICOT, RESIDING AT (1181 RP) AMSTELVEEN, THE NETHERLANDS, CHARLOTTE VAN MONTPENSIERLAAN 73, BORN IN HULST, THE NETHERLANDS, ON THE SIXTEENTH DAY OF APRIL NINETEEN HUNDRED AND FORTY-ONE, OF DUTCH NATIONALITY, PASSPORT NUMBER L286090. - - THAT THE FIRST OFFICE ADDRESS OF THE COMPANY SHALL BE: (1077 ZX) AMSTERDAM-ZUIDOOST, THE NETHERLANDS, STRAWINSKYLAAN 3105. - - THAT THE FIRST FINANCIAL YEAR SHALL END ON THE THIRTY-FIRST DAY OF DECEMBER, NINETEEN HUNDRED AND NINETY-NINE. - - THAT THE MINISTERIAL DECLARATION OF NON-OBJECTION, AS REFERRED TO IN ARTICLE 2:175 OF THE DUTCH CIVIL CODE WAS GRANTED ON THE FIRST DAY OF MARCH, NINETEEN HUNDRED AND NINETY-NINE, UNDER NUMBER B.V. 1064808 AND IS ATTACHED TO THIS DEED. POWER OF ATTORNEY THE AFOREMENTIONED POWER OF ATTORNEY APPEAR SUFFICIENTLY, TO ME, CIVIL LAW NOTARY, FROM ONE (1) PRIVATE DEED, FAX COPY OF WHICH POWER OF ATTORNEY WILL BE ATTACHED TO THIS DEED. THE APPEARER IS KNOWN TO ME, CIVIL LAW NOTARY, AND THE IDENTITY OF THE APPEARER HAS BEEN ESTABLISHED BY ME, CIVIL LAW NOTARY, BY MEANS OF THE ABOVEMENTIONED IDENTITY DOCUMENT. WHEREOF AN ORIGINAL DEED WAS EXECUTED IN ROTTERDAM ON THE DATE STATED ABOVE. AFTER THE CONTENTS OF THIS DEED HAVE BEEN STATED TO THE APPEARER AND SHE DECLARED THAT SHE HAD NOTED THE CONTENTS OF THE DEED AND DID NOT DESIRE THE DEED TO BE READ OUT FULL, AFTER BEING READ OUT IN PART, THIS DEED WAS IMMEDIATELY SIGNED BY APPEARER AND ME, CIVIL LAW NOTARY. (SIGNED: S. TULTAK; S. VAN DER WAAL) ISSUED FOR TRUE COPY EX-99 51 0051.txt CERTIFICATE OF INC OF CINERGY GLOBAL BAGHABARI II Cinergy/diversen/certificate/baghabariII.doc PB/ST MID81450/007 CERTIFICATE OF INCORPORATION WITH RESPECT TO CINERGY GLOBAL BAGHABARI II B.V. THE UNDERSIGNED, MR PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, DECLARES THAT: 1. CINERGY GLOBAL BAGHABARI II B.V. - HEREINAFTER REFERRED TO AS: THE "COMPANY" - IS A PRIVATE COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF THE NETHERLANDS, HAVING ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS, AND HAVING ITS OFFICES AT 1077 ZX AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105, 7TH FLOOR, AND BEING REGISTERED IN THE TRADEREGISTER OF THE CHAMBER OF COMMERCE IN AMSTERDAM, THE NETHERLANDS, UNDER NUMBER 34.113.959; THE COMPANY HAS BEEN INCORPORATED BY NOTARIAL DEED OF INCORPORATION EXECUTED ON THE 5TH DAY OF MARCH, 1999; 2. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE BEEN ADOPTED BY DEED OF INCORPORATION, EXECUTED BEFORE A SUBSTITUTE OF MR. P.H. BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, ON THE 5TH DAY OF MARCH, 1999. THE ARTICLES OF ASSOCIATION HAVE NOT BEEN AMENDED SINCE; 3. ACCORDING TO ARTICLE 2 OF AN UNOFFICIAL ENGLISH OFFICE TRANSLATION OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTY RIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. 4. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE FOLLOWING NATURAL PERSONS ARE MANAGING DIRECTOR OF THE COMPANY: - MR. JOHN BRYANT, RESIDING AT WIMBLEDON SW19 7HT, UNITED KINGDOM, 105 HOME PARK ROAD, BORN AT LONDON, UNITED KINGDOM, ON THE 11TH DAY OF JUNE, 1946, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; - MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE WARWICKSHIRE, UNITED KINGDOM, SAMBOURNE LANE, BORN AT MANSFIELD, UNITED KINGDOM, ON THE 5TH DAY OF AUGUST, 1959, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; -MR. LOUIS FRICOT, RESIDING AT 1181 RP AMSTELVEEN, THE NETHERLANDS, C. VAN MONTPENSIERLAAN 73, BORN AT HULST, THE NETHERLANDS, ON THE 16TH DAY OF APRIL, 1941, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. JOHAN VAN BELLEN, RESIDING AT 3602 XK MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN AT WILLEMSTAD, CURACAO, THE NETHERLANDS ANTILLES, ON THE 21ST DAY OF AUGUST, 1953, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. PAUL VAN BAARLE, RESIDING AT 3013 AL ROTTERDAM, THE NETHERLANDS, WEENA 399 D, BORN AT ROTTERDAM, THE NETHERLANDS, ON THE 15TH DAY OF SEPTEMBER, 1958, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. NANNO STEVEN VAN DER WERFF, RESIDING AT 1013 GD AMSTERDAM, THE NETHERLANDS, BINNEN VISSERSSTRAAT 14-4, BORN AT LEEUWARDEN, THE NETHERLANDS, ON THE 18TH DAY OF SEPTEMBER, 1964, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; 5. ACCORDING TO THE ARTICLES OF ASSOCIATION OF THE COMPANY, THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. SIGNED AT ROTTERDAM ON APRIL 17, 2000. EX-99 52 0052.txt DEED OF INCORPORATION CINERGY GLOBAL 3 B.V. Cinergy/oprichting1/cinergy 3/opricheng PB/ST/MV MID81450/008 OFFICE TRANSLATION OF THE DEED OF INCORPORATION OF CINERGY GLOBAL 3 B.V., HAVING ITS REGISTERED OFFICE AT AMSTERDAM THE NETHERLANDS ON THE FIFTEENTH DAY OF JULY, NINETEEN HUNDRED NINETY-NINE, THERE APPEARED BEFORE ME, MR PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM: SERAP TULTAK, LAWYER, RESIDING AT (3035 HM) ROTTERDAM, THE NETHERLANDS, ZAAGMOLENSTRAAT 206, BORN AT ISKENDERUN, TURKEY, ON THE NINETEENTH DAY OF OCTOBER NINETEEN HUNDRED AND SIXTY-EIGHT, NEITHER MARRIED NOR REGISTERED PARTNER, OF DUTCH NATIONALITY, PASSPORT NUMBER N07957495, ACTING FOR THE PURPOSES HEREOF AS WRITTEN ATTORNEY OF THE COMPANY ORGANISED UNDER THE LAWS OF THE NETHERLANDS: CINERGY HOLDINGS B.V., HAVING ITS REGISTERED OFFICE AMSTERDAM, THE NETHERLANDS, AND WITH OFFICES AT (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. THE APPEARER STATED THAT SAID PROXY BY THIS DEED INCORPORATES A PRIVATE LIMITED LIABILITY COMPANY WITH ENACTMENT OF THE FOLLOWING ARTICLES OF ASSOCIATION. NAME AND DOMICILE ARTICLE 1 1. THE NAME OF THE COMPANY IS: CINERGY GLOBAL 3 B.V. 2. THE COMPANY HAS ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS. OBJECT ARTICLE 2 THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTY RIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. CAPITAL AND SHARES ARTICLE 3 1. THE AUTHORISED CAPITAL AMOUNTS TO NINETY THOUSAND SEVEN HUNDRED AND SIXTY EURO (EURO 90.760=), DIVIDED INTO TWO THOUSAND (90.760) SHARES, NUMBERED 1 UP TO AND INCLUDING 90.760, EACH SHARE HAVING A PAR VALUE OF ONE EURO (EURO 1=). 2. THE SHARES SHALL BE REGISTERED SHARES. 3. NO SHARE CERTIFICATE SHALL BE ISSUED. 4. THE ISSUANCE OF SHARES, ALIENATION OF SHARES IN THE CAPITAL OF THE COMPANY BY THE COMPANY, AS WELL AS THE GRANTING OF RIGHTS TO SUBSCRIBE FOR THESE SHARES, SHALL BE EFFECTED BY THE BOARD OF MANAGEMENT PURSUANT TO A RESOLUTION OF THE GENERAL MEETING OF SHAREHOLDERS, - HEREINAFTER REFERRED TO AS: "THE GENERAL MEETING" - , WHICH RESOLUTION SHALL LAY DOWN THE DATE OF ISSUE, THE NUMBER OF SHARES TO BE ISSUED, AS WELL AS THE OTHER CONDITIONS, UNDER THE PROVISO THAT THE SHARES ARE NOT ISSUED BELOW PAR. 5. THE GENERAL MEETING MAY DELEGATE ITS POWERS TO PASS RESOLUTIONS REFERRED TO IN THE PRECEDING PARAGRAPH TO ANOTHER CORPORATE BODY AND MAY REVOKE SUCH DELEGATION. 6. ON THE ISSUANCE OF SHARES, EACH SHAREHOLDER SHALL HAVE A PRE-EMPTIVE RIGHT PRO RATA TO THE AGGREGATE AMOUNT OF HIS SHARES, SUBJECT TO LEGAL PROVISIONS. THE PRE-EMPTIVE RIGHT SHALL NOT BE TRANSFERABLE. 7. THE SHARES SHALL ONLY BE ISSUED AGAINST PAYMENT IN FULL. 8. THE COMPANY MAY GRANT LOANS FOR THE SUBSCRIPTION OR ACQUISITION OF SHARES IN THE CAPITAL OF THE COMPANY, BUT ONLY TO THE EXTENT OF ITS DISTRIBUTABLE RESERVES. USUFRUCT AND RIGHT OF PLEDGE ON SHARES ARTICLE 4 1. A RIGHT OF USUFRUCT OR PLEDGE MAY BE ESTABLISHED ON THE SHARES OF THE COMPANY. 2. USUFRUCTUARIES AND PLEDGEES HAVE NO VOTING RIGHTS. 3. USUFRUCTUARIES AND PLEDGEES DO NOT HAVE THE RIGHTS GRANTED BY LAW TO HOLDERS OF DEPOSITARY RECEIPTS FOR SHARES ISSUED WITH THE CO-OPERATION OF THE COMPANY. DEPOSITARY RECEIPTS FOR SHARES ARTICLE 5 1. THE COMPANY WILL NOT CO-OPERATE WITH THE ISSUE OF DEPOSITARY RECEIPTS FOR SHARES. 2. NO BEARER SHARE-CERTIFICATES MAY BE ISSUED. REGISTER OF SHAREHOLDERS ARTICLE 6 1. THE BOARD OF MANAGING DIRECTORS WILL KEEP A REGISTER WHICH CONTAINS: A. THE NAMES AND ADDRESSES OF SHAREHOLDERS; B. THE AMOUNT PAID ON EACH SHARE; C. THE NAMES AND ADDRESSES OF THOSE WHO HAVE A RIGHT OF USUFRUCT OR PLEDGE; D. EACH RELEASE OF LIABILITY FOR PAYMENT DUE ON SHARES. 2. THE REGISTER MUST BE REGULARLY UPDATED. 3. EACH SHAREHOLDER IS OBLIGED TO ENSURE THAT HIS ADDRESS IS KNOWN TO THE COMPANY. 4. IF REQUESTED, THE BOARD OF MANAGING DIRECTORS WILL, FREE OF CHARGE, PROVIDE A SHAREHOLDER, A USUFRUCTUARY OR PLEDGEE WITH AN EXTRACT FROM THE REGISTER WITH RESPECT TO HIS RIGHTS TO A SHARE. 5. THE BOARD OF MANAGING DIRECTORS MAKES THE REGISTER AVAILABLE FOR INSPECTION BY SHAREHOLDERS AT THE COMPANY'S OFFICES. SHARES IN JOINT-OWNERSHIP ARTICLE 7 1. IF SHARES ARE JOINTLY OWNED, THE PERSONS ENTITLED TO THESE SHARES MAY ONLY EXERCISE THE RIGHTS ATTACHED TO THESE SHARES IF THEY ARE REPRESENTED FOR THIS PURPOSE VIS-A-VIS THE COMPANY BY A PERSON APPOINTED BY THEM IN WRITING OR BY THE JUDGE. 2. THE NAME AND ADDRESS OF THIS REPRESENTATIVE ARE ENTERED IN THE REGISTER OF SHAREHOLDERS. TRANSFER OF SHARES ARTICLE 8 1. EACH TRANSFER OF SHARES NEEDS THE APPROVAL OF THE GENERAL MEETING. 2. THE APPLICATION FOR APPROVAL MUST BE DIRECTED TO THE COMPANY, STATING THE NUMBER OF SHARES INVOLVED AND THE NAME OF THE PERSON TO WHICH THE APPLICANT INTENTS TO TRANSFER THE SHARE(S). 3. THE APPROVAL IS SUPPOSED TO BE GRANTED: A. IF NO DECISION IS TAKEN WITHIN THIRTY DAYS; B. IF IN CASE THE APPROVAL IS DENIED, NO OTHERS ARE APPOINTED WHO ARE WILLING AND ABLE TO BUY ALL SHARES THE APPLICATION REFERS TO AGAINST PAYMENT IN CASH OF THE PRICE AT WHICH THE SHARES WILL BE VALUED BY ONE OR MORE EXPERTS. 4. THE TRANSFER OF THE SHARES CAN ONLY TAKE PLACE WITHIN THREE MONTHS AFTER THE APPROVAL HAS BEEN GRANTED OR IS SUPPOSED TO BE GRANTED. 5. THE COMPANY CAN ONLY BE APPOINTED AS PERSON WILLING TO BUY THE SHARES WITH THE AGREEMENT OF THE APPLICANT. 6. IF THE APPLICANT ACCEPTS THE PERSON(S) WILLING TO BUY THE SHARES ON OFFER, THE PRICE OF THE SHARES WILL BE DETERMINED BY THE COMPANY ACCOUNTANT IF HE IS AN INDEPENDENT ACCOUNTANT AND OTHERWISE BY AN EXPERT APPOINTED BY THE COURT (KANTONRECHTER) WITHIN WHOSE DISTRICT THE COMPANY IS STATUTARILY ESTABLISHED, UNLESS THE PARTIES AGREE OTHERWISE. 7. THE APPLICANT MAKING THE OFFER IS ENTITLED TO WITHDRAW HIS OFFER WITHIN A MONTH AFTER BEING INFORMED OF THE PERSON(S) WILLING TO BUY THE SHARES AND THE PRICE. 8. THE APPLICATION FOR APPROVAL AND ALL NOTIFICATIONS REFERRED TO IN THIS ARTICLE MUST BE SEND BY REGISTERED MAIL UNLESS ALL SHAREHOLDERS AGREE UNANIMOUSLY OTHERWISE. ACQUISITION OF OWN SHARES ARTICLE 9 1. THE COMPANY MAY ONLY ACQUIRE SHARES IN ITS OWN CAPITAL FREE OF CHARGE, OR IF ALL OF THE FOLLOWING PROVISIONS ARE COMPLIED WITH: A. THE COMPANY'S OWN EQUITY MINUS THE ACQUISITION PRICE IS NOT SMALLER THAN THE PAID-IN AND CALLED UP PART OF THE SHARE CAPITAL PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW; B. THE NOMINAL AMOUNT OF THE SHARES IN ITS CAPITAL TO BE ACQUIRED AND THOSE ALREADY HELD BY THE COMPANY AND ITS SUBSIDIARIES DOES NOT AMOUNT TO MORE THAN HALF OF THE SUBSCRIBED CAPITAL; C. AUTHORISATION FOR THE ACQUISITION HAS BEEN GRANTED BY THE GENERAL MEETING OR BY ANOTHER COMPANY BODY APPOINTED BY IT. 2. THE AMOUNT OF THE COMPANY'S OWN CAPITAL ACCORDING TO THE MOST RECENTLY ADOPTED BALANCE SHEET, MINUS THE ACQUISITION PRICE FOR THE SHARES IN THE COMPANY'S CAPITAL, AND MINUS THE DISTRIBUTIONS OUT OF THE PROFITS OR RESERVES TO OTHERS WHICH WERE OWED BY THE COMPANY AND ITS SUBSIDIARIES AFTER THE DATE THE BALANCE WAS ADOPTED, DETERMINES THE VALIDITY OF THE ACQUISITION. IF MORE THAN SIX MONTHS HAVE PASSED AFTER A CLOSE OF THE FINANCIAL YEAR WITHOUT ANNUAL ACCOUNTS HAVING BEEN ADOPTED, THE ACQUISITION IN ACCORDANCE WITH PARAGRAPH 1 IS NOT PERMITTED. 3. THE PREVIOUS PARAGRAPHS DO NO APPLY TO SHARES ACQUIRED BY THE COMPANY BY OPERATION OF LAW. 4. ACQUISITION BY THE COMPANY OF NOT FULLY PAID-UP SHARES IN HER OWN CAPITAL IS VOID. ISSUE AND TRANSFER OF SHARES ARTICLE 10 1. FOR ISSUE OF SHARES AFTER INCORPORATION OR FOR THE TRANSFER OF SHARES OR FOR THE CREATION OR TRANSFER OF A LIMITED RIGHT THEREON, A NOTARIAL DEED IS REQUIRED. 2. UNLESS THE COMPANY HERSELF IS A PARTY TO THE TRANSFER, THE RIGHTS ATTACHED TO THE SHARES MAY NOT BE EXERCISED BEFORE THE ACKNOWLEDGEMENT BY THE COMPANY - WHETHER OF NO OF HER OWN ACCORD - OF THE TRANSFER, OR BEFORE THE TRANSFER HAS BEEN SERVED TO THE COMPANY. MANAGEMENT ARTICLE 11 1. THE COMPANY IS MANAGED BY A BOARD OF MANAGEMENT, CONSISTING OF AT LEAST ONE OR MORE MANAGING DIRECTORS A AND AT LEAST ONE OR MORE MANAGING DIRECTORS B. 2. THE GENERAL MEETING DETERMINES THE NUMBER OF MANAGING DIRECTORS A AND MANAGING DIRECTORS B. MANAGING DIRECTORS B NEED TO BE RESIDENTS OF THE NETHERLANDS. 3. IF A VACANCY ARISES IN THE BOARD OF MANAGING DIRECTORS, THE BOARD OF MANAGING DIRECTORS RETAINS ITS POWERS. 4. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ONE OR MORE DIRECTORS B, THE GENERAL MEETING WILL - WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE - MAKE TEMPORARILY PROVISIONS. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ALL THE DIRECTORS, OR OF THE SOLE DIRECTOR, THE GENERAL MEETING WILL, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE, MAKE TEMPORARILY PROVISIONS. APPOINTMENT, DISMISSAL AND SALARIES OF MANAGING DIRECTORS ARTICLE 12 1. THE MANAGING DIRECTORS ARE APPOINTED BY THE GENERAL MEETING. 2. THE GENERAL MEETING WILL DETERMINE THE SALARIES AND OTHER CONDITIONS OF EMPLOYMENT OF EVERY MANAGING DIRECTOR. 3. MANAGING DIRECTORS MAY BE SUSPENDED OR DISMISSED BY THE GENERAL MEETING AT ANY TIME. 4. THE BOARD OF MANAGING DIRECTORS ADOPT A CHARTER, SETTING OUT RULES ON THE DECISION MAKING PROCESS OF THE BOARD OF MANAGING DIRECTORS. THE CHARTER REQUIRES THE APPROVAL OF THE GENERAL MEETING. 5. THE BOARD OF MANAGING DIRECTORS MAY ADOPT AN ALLOCATION OF DUTIES STATING FOR WHICH DUTY EACH MANAGING DIRECTOR HAS A PRIME RESPONSIBILITY. SUCH ALLOCATION OF DUTIES REQUIRES THE APPROVAL OF THE GENERAL MEETING. 6. THE BOARD OF MANAGEMENT MEETS AS OFTEN AS THE BOARD DEEMS NECESSARY. VALID RESOLUTIONS MAY ONLY BE ADOPTED BY THE BOARD OF MANAGEMENT IF AT LEAST ONE DIRECTOR A AND TWO DIRECTORS B ARE PRESENT. ALL RESOLUTIONS OF THE BOARD OF MANAGEMENT ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST. THE BOARD OF MANAGEMENT MAY ALSO ADOPT BOARD RESOLUTIONS BY TELEPHONE OR TELEX, OR ANY OTHER PROPER MEANS OF COMMUNICATION (INTERNET, E-MAIL). APPROVAL OF MANAGEMENT DECISIONS ARTICLE 13 1. THE GENERAL MEETING MAY SUBMIT RESOLUTIONS OF THE BOARD OF MANAGING DIRECTORS TO ITS APPROVAL. SUCH RESOLUTIONS ARE TO BE CLEARLY DEFINED AND NOTIFIED IN WRITING TO THE BOARD OF MANAGING DIRECTORS. 2. THE APPROVAL REFERRED TO IN THE PREVIOUS PARAGRAPH DOES NOT HAVE TO BE GIVEN FOR EACH INDIVIDUAL CASE IF IT HAS BEEN GRANTED IN A GENERAL SENSE. 3. THE BOARD OF MANAGING DIRECTORS HAS TO ACT IN ACCORDANCE WITH THE DIRECTIONS OF THE GENERAL MEETING CONCERNING THE FINANCIAL, ECONOMICAL, SOCIAL AND PERSONNEL MANAGEMENT. REPRESENTATION OF THE COMPANY ARTICLE 14 1. THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. 2. IF THE COMPANY HAS CONFLICTING INTERESTS WITH ONE OR MORE MANAGING DIRECTORS, THE COMPANY MAY, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1 OF THIS ARTICLE, STILL BE REPRESENTED BY THAT MANAGING DIRECTOR. THE GENERAL MEETING IS ALWAYS EMPOWERED TO APPOINT ONE OR MORE PERSONS FOR THIS PURPOSE. 3. LEGAL ACTS BETWEEN THE COMPANY AND THE HOLDER OF ALL THE SHARES IN THE CAPITAL OF THE COMPANY HAVE TO BE LAID DOWN IN WRITING IF THE COMPANY HAS BEEN REPRESENTED BY THE SHAREHOLDER. THE OBLIGATION TO LAY DOWN THE LEGAL ACT IN WRITING ALSO APPLIES IF THE COMPANY IS REPRESENTED BY A PERSON WHO IS ENTITLED TO A MATRIMONIAL COMMUNITY OF GOODS OF WHICH ALL SHARES ARE A PART. 4. FOR THE APPLICATION OF PARAGRAPH 3, SHARES HELD BY THE COMPANY OR ITS SUBSIDIARIES ARE NOT TAKEN INTO ACCOUNT. PARAGRAPH 3 DOES NOT APPLY IF THE LEGAL ACTS, AND THEIR CONDITIONS AS AGREED ON, ARE PART OF THE CUSTOMARY CONDUCT OF THE BUSINESS OF THE COMPANY. GENERAL MEETING ARTICLE 15 1. THE ANNUAL GENERAL MEETING IS HELD NO MORE THAN SIX MONTHS AFTER THE END OF THE FINANCIAL YEAR. 2. THE AGENDA OF THAT MEETING WILL CONTAIN AT LEAST THE FOLLOWING POINTS: A. THE ANNUAL REPORT; B. ADOPTION OF THE ANNUAL ACCOUNTS; C. DETERMINATION OF THE DISTRIBUTION OF PROFITS. 3. EXTRAORDINARY GENERAL MEETINGS ARE HELD WHENEVER ONE OF THE MANAGING DIRECTORS CONSIDERS THIS DESIRABLE, OR ONE OR MORE SHAREHOLDERS, COLLECTIVELY REPRESENTING AT LEAST ONE TENTH OF THE ISSUED SHARE CAPITAL, REQUEST THIS IN WRITING, DETAILING THE SUBJECTS TO BE DEALT WITH. PLACE AND CALLING OF THE MEETING ARTICLE 16 1. THE GENERAL MEETINGS WILL BE HELD IN AMSTERDAM, ROTTERDAM, THE HAGUE OR HAARLEMMERMEER (SCHIPHOL AIRPORT). 2. ALL THE SHAREHOLDERS MUST BE NOTIFIED OF A GENERAL MEETING. 3. THE GENERAL MEETING IS CALLED BY THE BOARD OF MANAGING DIRECTORS BY LETTERS SENT TO THE ADDRESSES STATED IN THE REGISTER OF SHAREHOLDERS. 4. THE LETTERS CONTAIN THE TIME AND PLACE OF THE GENERAL MEETING, AS WELL AS THE SUBJECTS TO BE DEALT WITH. 5. THE GENERAL MEETING WILL BE CALLED NO LATER THAN FIFTEEN DAYS BEFORE THE DAY OF THE GENERAL MEETING. CHAIRMANSHIP ARTICLE 17 THE GENERAL MEETING CHOOSES ITS OWN CHAIRMAN. MINUTES ARTICLE 18 1. MINUTES OF THE BUSINESS OF THE GENERAL MEETING SHALL BE DRAWN UP, WHICH ARE SIGNED BY THE CHAIRMAN OF THE GENERAL MEETING AND BY A PERSON APPOINTED BY HIM. 2. IF AN OFFICIAL RECORD OF THE BUSINESS OF THE GENERAL MEETING IS DRAWN UP BY A NOTARY, IT SUFFICES FOR THE CHAIRMAN OF THE GENERAL MEETING TO CO-SIGN THIS. RIGHTS RELATED TO THE MEETING ARTICLE 19 1. EACH SHAREHOLDER IS ENTITLED TO ATTEND AND SPEAK AT THE GENERAL MEETING. 2. EACH SHAREHOLDER MAY BE REPRESENTED AT THE GENERAL MEETING BY SOMEONE AUTHORISED IN WRITING. DECISION MAKING ARTICLE 20 1. EACH SHARE CONFERS THE RIGHT TO CAST ONE VOTE. 2. ALL RESOLUTIONS ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST, UNLESS THESE ARTICLES OF ASSOCIATION REQUIRE A LARGER MAJORITY. 3. BLANK VOTES AND INVALID VOTES ARE CONSIDERED NOT TO HAVE BEEN CAST. 4. VOTING ON BUSINESS MATTERS OCCURS ORALLY; VOTING ON PERSONS TAKES PLACE IN WRITING BY UNSIGNED BALLOT. 5. IN THE CASE OF A TIE IN VOTES ON BUSINESS MATTERS, THE PROPOSAL HAS BEEN REJECTED. 6. IF NO ONE HAS ACQUIRED AN ABSOLUTE MAJORITY IN A VOTE ON PERSONS IN THE FIRST VOTE, A NEW, FREE VOTE IS HELD. IF AGAIN THERE IS NO ABSOLUTE MAJORITY, THERE IS ANOTHER VOTE BETWEEN THE TWO PERSONS WHO OBTAINED THE MOST VOTES BETWEEN THEM IN THE SECOND VOTE. IF NECESSARY, AN INTERIM VOTE IS HELD TO DECIDE BETWEEN WHICH TWO PERSONS THE NEW VOTE WILL BE HELD. IN THE CASE OF A TIE IN VOTES AFTER THE NEW VOTE LOTS WILL BE DRAWN BY THE CHAIRMAN OF THE GENERAL MEETING TO REACH A DECISION. 7. ALL PROPOSALS MAY BE ACCEPTED BY ACCLAMATION IF NONE OF THE PERSONS ENTITLED TO VOTE OPPOSES THIS. 8. NO VOTE MAY BE CAST IN THE GENERAL MEETING FOR A SHARE WHICH IS HELD BY THE COMPANY OR BY A SUBSIDIARY COMPANY. 9. IN DETERMINING TO WHAT EXTENT THE SHAREHOLDERS ARE VOTING, ATTENDING OR REPRESENTED, OR TO WHAT EXTENT THE SHARE CAPITAL IS MADE AVAILABLE OR REPRESENTED, THE SHARES FOR WHICH THE LAW STATES THAT NO VOTE CAN BE CAST, ARE NOT TAKEN INTO ACCOUNT. DECISION-MAKING WHEN THE ENTIRE SUBSCRIBED CAPITAL IS PRESENT ARTICLE 21 THE GENERAL MEETING MAY ADOPT RESOLUTIONS REGARDING ALL SUBJECTS WHICH ARISE, PROVIDED THAT THERE IS AN UNANIMOUS VOTE, IF ALL THE SHAREHOLDERS ARE PRESENT, EVEN IF THE PROVISIONS ON THE PLACE AND CALLING OF THE GENERAL MEETING HAVE NOT BEEN COMPLIED WITH. DECISION-MAKING WITHOUT CALLING A GENERAL MEETING ARTICLE 22 SHAREHOLDERS MAY ALSO ADOPT RESOLUTIONS WITHOUT CALLING A GENERAL MEETING, PROVIDED THAT ALL THE SHAREHOLDERS HAVE DECLARED TO BE IN FAVOUR OF THE PROPOSAL IN WRITING, BY TELEGRAPH, TELEX OR FAX. FINANCIAL YEAR ARTICLE 23 THE FINANCIAL YEAR COINCIDES WITH THE CALENDAR YEAR. ANNUAL ACCOUNTS ARTICLE 24 1. THE BOARD OF MANAGING DIRECTORS WILL DRAW UP THE ANNUAL ACCOUNTS, CONSISTING OF THE BALANCE SHEETS AND A PROFIT AND LOSS ACCOUNT, WITH AN EXPLANATION THERETO, WITHIN FIVE MONTHS OF THE END OF THE FINANCIAL YEAR, UNLESS THIS PERIOD HAS BEEN EXTENDED BY THE GENERAL MEETING FOR A MAXIMUM OF SIX MONTHS ON GROUNDS OF SPECIAL CIRCUMSTANCES. 2. THE ANNUAL ACCOUNTS ARE SIGNED BY ALL MANAGING DIRECTORS; IF ANY SIGNATURE IS MISSING, THE REASON FOR THIS IS STATED. DISCHARGE OF THE MANAGEMENT ARTICLE 25 THE UNCONDITIONAL ADOPTION OF THE ANNUAL ACCOUNTS BY THE GENERAL MEETING DISCHARGES, SUBJECT TO LEGAL LIMITATIONS, THE MANAGING DIRECTORS FOR THEIR MANAGEMENT FOR THE FINANCIAL YEAR CONCERNED. DIVIDEND ARTICLE 26 1. THE PROFIT IS ENTIRELY AT THE DISPOSAL OF THE GENERAL MEETING. 2. THE COMPANY MAY ONLY MAKE DISTRIBUTIONS TO SHAREHOLDERS AND OTHERS ENTITLED TO PROFITS, IN AS FAR AS ITS EQUITY IS LARGER THAN THE PAID-UP AND CALLED PART OF THE CAPITAL, PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW. 3. DISTRIBUTION OF PROFITS OCCURS AFTER THE ANNUAL ACCOUNTS HAVE BEEN ADOPTED, EVIDENCING THAT SUCH IS JUSTIFIED. 4. THE COMPANY MAY ONLY MAKE INTERIM DISTRIBUTIONS IF THE PROVISIONS OF PARAGRAPH 2 HAVE BEEN COMPLIED WITH. 5. NO PROFIT IS PAID ON SHARES TO THE COMPANY. 6. THE CLAIM TO DIVIDEND EXPIRES AFTER FIVE YEARS. AMENDMENTS TO THE ARTICLES OF ASSOCIATION AND DISSOLUTION OF THE COMPANY ARTICLE 27 1. A RESOLUTION TO AMEND THE ARTICLES OF ASSOCIATION, OR TO DISSOLVE THE COMPANY, MAY ONLY BE ADOPTED BY THE GENERAL MEETING. 2. IN CALLING A GENERAL MEETING IN WHICH THERE SHALL BE DEALT WITH A PROPOSAL TO AMEND THE ARTICLES OF ASSOCIATION, THE TEXT OF THE PROPOSED AMENDMENT TO THE ARTICLES OF ASSOCIATION SHALL BE INCLUDED IN THE NOTIFICATION. IN ADDITION, THIS TEXT WILL BE MADE AVAILABLE AT THE COMPANY'S OFFICES FOR INSPECTION BY SHAREHOLDERS FROM THE DAY THE MEETING IS CALLED UNTIL AFTER THE MEETING. LIQUIDATION ARTICLE 28 1. FOLLOWING THE DISSOLUTION OF THE COMPANY, THE LIQUIDATION WILL BE EFFECTED BY THE MANAGING DIRECTORS, UNLESS THE GENERAL MEETING RESOLVES OTHERWISE. 2. THE GENERAL MEETING DETERMINES THE REMUNERATION OF THE LIQUIDATORS. 3. DURING THE LIQUIDATION, THE PROVISIONS OF THE ARTICLES OF ASSOCIATION WILL REMAIN IN FORCE IN AS FAR AS POSSIBLE, SUCH THAT THE PROVISIONS ON THE BOARD OF MANAGING DIRECTORS APPLY TO THE LIQUIDATORS. 4. ANYTHING REMAINING AFTER PAYMENT TO THE CREDITORS IS PAID TO THE SHAREHOLDERS IN PROPORTION TO THE NUMBER OF SHARES THEY OWN. 5. THE BOOKS AND RECORDS OF THE COMPANY WILL REMAIN WITH THE PERSON APPOINTED FOR THIS PURPOSE BY THE GENERAL MEETING FOR THE PERIOD REQUIRED BY THE LAW. CONCLUDING DECLARATIONS THE APPEARER FURTHER DECLARED: - - THAT EIGHTEEN THOUSAND ONE HUNDRED FIFTY TWO (18.152) SHARES OF THE AUTHORISED CAPITAL, NUMBERED 1 UP TO AND INCLUDING 18.152, EACH SHARE HAVING A PAR VALUE OF ONE EURO (EURO 1,=), HAVE BEEN PLACED WITH THE INCORPORATOR, SO THAT THE SUBSCRIBED CAPITAL AMOUNTS TO EIGHTEEN THOUSAND ONE HUNDRED FIFTY TWO EURO (EURO 18.152,=). - - THAT FOR THE BENEFIT OF THE COMPANY THE INCORPORATOR HAS AGREED TO PAY UP HIS SHARES IN FULL IN MONEY, WHICH PAYMENT HAS BEEN EFFECTED, WHICH APPEARS FROM THE STATEMENT TO BE ATTACHED TO THIS DEED AS REFERRED TO IN THE LAW, WHICH PAYMENT IS HEREBY ACCEPTED BY THE COMPANY. ANY SURPLUS PAYMENT TRANSFERRED BY THE INCORPORATOR TO THE BANK ACCOUNT OF THE COMPANY, WILL BE ALLOCATED TO THE SHARE PREMIUM RESERVE OF THE SHARES. - - THAT PAYMENT IN FOREIGN CURRENCY IS PERMITTED. - - THAT THE INITIAL MANAGING DIRECTORS A SHALL BE: A. MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE, WARWICKSHIRE B96 6PA, UNITED KINGDOM, THATCHBROOK, SAMBOURNE LANE, BORN IN MANSFIELD, UNITED KINGDOM, ON THE FIFTH DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-NINE, OF BRITISH NATIONALITY, PASSPORT NUMBER 011822240; AND B. MR. JOHN BRYANT, RESIDING AT WIMBLEDON, SW19 7HT LONDON, UNITED KINGDOM, 105 HOME PARK ROAD, BORN IN CROYDON, UNITED KINGDOM, ON THE ELEVENTH DAY OF JUNE NINETEEN HUNDRED AND FORTY-SIX, OF BRITISH NATIONALITY, PASSPORT NUMBER 500223488; - - THAT THE INITIAL MANAGING DIRECTORS B SHALL BE: A. MR. PETER DEEGE, RESIDING AT (1311 HB) ALMERE, THE NETHERLANDS, MAURICE CHEVALIERSTRAAT 4, BORN IN ROTTERDAM, THE NETHERLANDS, ON THE NINTH DAY OF DECEMBER NINETEEN HUNDRED AND FIFTY, OF DUTCH NATIONALITY, PASSPORT NUMBER M017374; B. MR. JOHAN VAN BELLEN, RESIDING AT (3602 XK) MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN IN CURACAO, THE NETHERLANDS ANTILLES, ON THE TWENTY-FIRST DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-THREE, OF DUTCH NATIONALITY, PASSPORT NUMBER N11859491; C. MR. HENDRIK JUSTUS WIRIX, RESIDING AT (1191 EW) OUDERKERK AAN DEN AMSTEL, THE NETHERLANDS, H. VAN AVERCAMPWEG 25, BORN IN ARNHEM, THE NETHERLANDS, ON THE THIRD DAY OF MAY NINETEEN HUNDRED AND FORTY-SEVEN, OF DUTCH NATIONALITY, PASSPORT NUMBER L273346; AND D. MR. LOUIS FRICOT, RESIDING AT (1181 RP) AMSTELVEEN, THE NETHERLANDS, CHARLOTTE VAN MONTPENSIERLAAN 73, BORN IN HULST, THE NETHERLANDS, ON THE SIXTEENTH DAY OF APRIL NINETEEN HUNDRED AND FORTY-ONE, OF DUTCH NATIONALITY, PASSPORT NUMBER L286090. - - THAT THE FIRST OFFICE ADDRESS OF THE COMPANY SHALL BE: (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. - - THAT THE FIRST FINANCIAL YEAR SHALL END ON THE THIRTY-FIRST DAY OF DECEMBER, NINETEEN HUNDRED AND NINETY-NINE. - - THAT THE MINISTERIAL DECLARATION OF NON-OBJECTION, AS REFERRED TO IN ARTICLE 2:175 OF THE DUTCH CIVIL CODE WAS GRANTED ON THE THIRTEENTH DAY OF JULY, NINETEEN HUNDRED AND NINETY-NINE, UNDER NUMBER B.V. 1081832 AND IS ATTACHED TO THIS DEED. POWER OF ATTORNEY THE AFOREMENTIONED POWER OF ATTORNEY APPEAR SUFFICIENTLY, TO ME, CIVIL LAW NOTARY, FROM ONE (1) PRIVATE DEED, FAX COPY OF WHICH POWER OF ATTORNEY WILL BE ATTACHED TO THIS DEED. THE APPEARER IS KNOWN TO ME, CIVIL LAW NOTARY, AND THE IDENTITY OF THE APPEARER HAS BEEN ESTABLISHED BY ME, CIVIL LAW NOTARY, BY MEANS OF THE ABOVEMENTIONED IDENTITY DOCUMENT. WHEREOF AN ORIGINAL DEED WAS EXECUTED IN ROTTERDAM ON THE DATE STATED ABOVE. AFTER THE CONTENTS OF THIS DEED HAVE BEEN STATED TO THE APPEARER AND SHE DECLARED THAT SHE HAD NOTED THE CONTENTS OF THE DEED AND DID NOT DESIRE THE DEED TO BE READ OUT FULL, AFTER BEING READ OUT IN PART, THIS DEED WAS IMMEDIATELY SIGNED BY APPEARER AND ME, CIVIL LAW NOTARY. (SIGNED: ) S. TULTAK, P.H. BOLLAND ISSUED FOR TRUE COPY EX-99 53 0053.txt CERTIFICATE OF INC. OF CINERGY GLOBAL 3 B.V. Cinergy/diversen/certificate/cinergy3.doc PB/ST MID81450/007 CERTIFICATE OF INCORPORATION WITH RESPECT TO CINERGY GLOBAL 3 B.V. THE UNDERSIGNED, MR PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, DECLARES THAT: 1. CINERGY GLOBAL 3 B.V. - HEREINAFTER REFERRED TO AS: THE "COMPANY" - IS A PRIVATE COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF THE NETHERLANDS, HAVING ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS, AND HAVING ITS OFFICES AT 1077 ZX AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105, 7TH FLOOR, AND BEING REGISTERED IN THE TRADEREGISTER OF THE CHAMBER OF COMMERCE IN AMSTERDAM, THE NETHERLANDS, UNDER NUMBER 34.119.331; THE COMPANY HAS BEEN INCORPORATED BY NOTARIAL DEED OF INCORPORATION EXECUTED ON THE 15TH DAY OF JULY, 1999; 2. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE BEEN ADOPTED BY DEED OF INCORPORATION, EXECUTED BEFORE MR. P.H. BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, ON THE 15TH DAY OF JULY, 1999. THE ARTICLES OF ASSOCIATION HAVE NOT BEEN AMENDED SINCE; 3. ACCORDING TO ARTICLE 2 OF AN UNOFFICIAL ENGLISH OFFICE TRANSLATION OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTYRIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. 4. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE FOLLOWING NATURAL PERSONS ARE MANAGING DIRECTOR OF THE COMPANY: - MR. JOHN BRYANT, RESIDING AT WIMBLEDON SW19 7HT, UNITED KINGDOM, 105 HOME PARK ROAD, BORN AT LONDON, UNITED KINGDOM, ON THE 11TH DAY OF JUNE, 1946, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; - MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE WARWICKSHIRE, UNITED KINGDOM, SAMBOURNE LANE, BORN AT MANSFIELD, UNITED KINGDOM, ON THE 5TH DAY OF AUGUST, 1959, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; - MR. LOUIS FRICOT, RESIDING AT 1181 RP AMSTELVEEN, THE NETHERLANDS, C. VAN MONTPENSIERLAAN 73, BORN AT HULST, THE NETHERLANDS, ON THE 16TH DAY OF APRIL, 1941, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. JOHAN VAN BELLEN, RESIDING AT 3602 XK MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN AT WILLEMSTAD, CURACAO, THE NETHERLANDS ANTILLES, ON THE 21ST DAY OF AUGUST, 1953, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. PAUL VAN BAARLE, RESIDING AT 3013 AL ROTTERDAM, THE NETHERLANDS, WEENA 399 D, BORN AT ROTTERDAM, THE NETHERLANDS, ON THE 15TH DAY OF SEPTEMBER, 1958, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. NANNO STEVEN VAN DER WERFF, RESIDING AT 1013 GD AMSTERDAM, THE NETHERLANDS, BINNEN VISSERSSTRAAT 14-4, BORN AT LEEUWARDEN, THE NETHERLANDS, ON THE 18TH DAY OF SEPTEMBER, 1964, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; 5. ACCORDING TO THE ARTICLES OF ASSOCIATION OF THE COMPANY, THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. SIGNED AT ROTTERDAM ON APRIL 17, 2000. EX-99 54 0054.txt DEED OF INCORPORATION OF CINERGY GLOBAL 4 B.V. Cinergy/oprichting1/cinergy 4/opricheng PB/ST/MV MID81450/008 OFFICE TRANSLATION OF THE DEED OF INCORPORATION OF CINERGY GLOBAL 4 B.V., HAVING ITS REGISTERED OFFICE AT AMSTERDAM THE NETHERLANDS ON THE FIFTEENTH DAY OF JULY, NINETEEN HUNDRED NINETY-NINE, THERE APPEARED BEFORE ME, MR PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM: SERAP TULTAK, LAWYER, RESIDING AT (3035 HM) ROTTERDAM, THE NETHERLANDS, ZAAGMOLENSTRAAT 206, BORN AT ISKENDERUN, TURKEY, ON THE NINETEENTH DAY OF OCTOBER NINETEEN HUNDRED AND SIXTY-EIGHT, NEITHER MARRIED NOR REGISTERED PARTNER, OF DUTCH NATIONALITY, PASSPORT NUMBER N07957495, ACTING FOR THE PURPOSES HEREOF AS WRITTEN ATTORNEY OF THE COMPANY ORGANISED UNDER THE LAWS OF THE NETHERLANDS: CINERGY HOLDINGS B.V., HAVING ITS REGISTERED OFFICE AMSTERDAM, THE NETHERLANDS, AND WITH OFFICES AT (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. THE APPEARER STATED THAT SAID PROXY BY THIS DEED INCORPORATES A PRIVATE LIMITED LIABILITY COMPANY WITH ENACTMENT OF THE FOLLOWING ARTICLES OF ASSOCIATION. NAME AND DOMICILE ARTICLE 1 1. THE NAME OF THE COMPANY IS: CINERGY GLOBAL 4 B.V. 2. THE COMPANY HAS ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS. OBJECT ARTICLE 2 THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTY RIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. CAPITAL AND SHARES ARTICLE 3 1. THE AUTHORISED CAPITAL AMOUNTS TO NINETY THOUSAND SEVEN HUNDRED AND SIXTY EURO (EURO 90.760=), DIVIDED INTO TWO THOUSAND (90.760) SHARES, NUMBERED 1 UP TO AND INCLUDING 90.760, EACH SHARE HAVING A PAR VALUE OF ONE EURO (EURO 1=). 2. THE SHARES SHALL BE REGISTERED SHARES. 3. NO SHARE CERTIFICATE SHALL BE ISSUED. 4. THE ISSUANCE OF SHARES, ALIENATION OF SHARES IN THE CAPITAL OF THE COMPANY BY THE COMPANY, AS WELL AS THE GRANTING OF RIGHTS TO SUBSCRIBE FOR THESE SHARES, SHALL BE EFFECTED BY THE BOARD OF MANAGEMENT PURSUANT TO A RESOLUTION OF THE GENERAL MEETING OF SHAREHOLDERS, - HEREINAFTER REFERRED TO AS: "THE GENERAL MEETING" - , WHICH RESOLUTION SHALL LAY DOWN THE DATE OF ISSUE, THE NUMBER OF SHARES TO BE ISSUED, AS WELL AS THE OTHER CONDITIONS, UNDER THE PROVISO THAT THE SHARES ARE NOT ISSUED BELOW PAR. 5. THE GENERAL MEETING MAY DELEGATE ITS POWERS TO PASS RESOLUTIONS REFERRED TO IN THE PRECEDING PARAGRAPH TO ANOTHER CORPORATE BODY AND MAY REVOKE SUCH DELEGATION. 6. ON THE ISSUANCE OF SHARES, EACH SHAREHOLDER SHALL HAVE A PRE-EMPTIVE RIGHT PRO RATA TO THE AGGREGATE AMOUNT OF HIS SHARES, SUBJECT TO LEGAL PROVISIONS. THE PRE-EMPTIVE RIGHT SHALL NOT BE TRANSFERABLE. 7. THE SHARES SHALL ONLY BE ISSUED AGAINST PAYMENT IN FULL. 8. THE COMPANY MAY GRANT LOANS FOR THE SUBSCRIPTION OR ACQUISITION OF SHARES IN THE CAPITAL OF THE COMPANY, BUT ONLY TO THE EXTENT OF ITS DISTRIBUTABLE RESERVES. USUFRUCT AND RIGHT OF PLEDGE ON SHARES A ARTICLE 4 1. A RIGHT OF USUFRUCT OR PLEDGE MAY BE ESTABLISHED ON THE SHARES OF THE COMPANY. 2. USUFRUCTUARIES AND PLEDGEES HAVE NO VOTING RIGHTS. 3. USUFRUCTUARIES AND PLEDGEES DO NOT HAVE THE RIGHTS GRANTED BY LAW TO HOLDERS OF DEPOSITARY RECEIPTS FOR SHARES ISSUED WITH THE CO-OPERATION OF THE COMPANY. DEPOSITARY RECEIPTS FOR SHARES ARTICLE 5 1. THE COMPANY WILL NOT CO-OPERATE WITH THE ISSUE OF DEPOSITARY RECEIPTS FOR SHARES. 2. NO BEARER SHARE-CERTIFICATES MAY BE ISSUED. REGISTER OF SHAREHOLDERS ARTICLE 6 1. THE BOARD OF MANAGING DIRECTORS WILL KEEP A REGISTER WHICH CONTAINS: A. THE NAMES AND ADDRESSES OF SHAREHOLDERS; B. THE AMOUNT PAID ON EACH SHARE; C. THE NAMES AND ADDRESSES OF THOSE WHO HAVE A RIGHT OF USUFRUCT OR PLEDGE; D. EACH RELEASE OF LIABILITY FOR PAYMENT DUE ON SHARES. 2. THE REGISTER MUST BE REGULARLY UPDATED. 3. EACH SHAREHOLDER IS OBLIGED TO ENSURE THAT HIS ADDRESS IS KNOWN TO THE COMPANY. 4. IF REQUESTED, THE BOARD OF MANAGING DIRECTORS WILL, FREE OF CHARGE, PROVIDE A SHAREHOLDER, A USUFRUCTUARY OR PLEDGEE WITH AN EXTRACT FROM THE REGISTER WITH RESPECT TO HIS RIGHTS TO A SHARE. 5. THE BOARD OF MANAGING DIRECTORS MAKES THE REGISTER AVAILABLE FOR INSPECTION BY SHAREHOLDERS AT THE COMPANY'S OFFICES. SHARES IN JOINT-OWNERSHIP ARTICLE 7 1. IF SHARES ARE JOINTLY OWNED, THE PERSONS ENTITLED TO THESE SHARES MAY ONLY EXERCISE THE RIGHTS ATTACHED TO THESE SHARES IF THEY ARE REPRESENTED FOR THIS PURPOSE VIS-A-VIS THE COMPANY BY A PERSON APPOINTED BY THEM IN WRITING OR BY THE JUDGE. 2. THE NAME AND ADDRESS OF THIS REPRESENTATIVE ARE ENTERED IN THE REGISTER OF SHAREHOLDERS. TRANSFER OF SHARES ARTICLE 8 1. EACH TRANSFER OF SHARES NEEDS THE APPROVAL OF THE GENERAL MEETING. 2. THE APPLICATION FOR APPROVAL MUST BE DIRECTED TO THE COMPANY, STATING THE NUMBER OF SHARES INVOLVED AND THE NAME OF THE PERSON TO WHICH THE APPLICANT INTENTS TO TRANSFER THE SHARE(S). 3. THE APPROVAL IS SUPPOSED TO BE GRANTED: A. IF NO DECISION IS TAKEN WITHIN THIRTY DAYS; B. IF IN CASE THE APPROVAL IS DENIED, NO OTHERS ARE APPOINTED WHO ARE WILLING AND ABLE TO BUY ALL SHARES THE APPLICATION REFERS TO AGAINST PAYMENT IN CASH OF THE PRICE AT WHICH THE SHARES WILL BE VALUED BY ONE OR MORE EXPERTS. 4. THE TRANSFER OF THE SHARES CAN ONLY TAKE PLACE WITHIN THREE MONTHS AFTER THE APPROVAL HAS BEEN GRANTED OR IS SUPPOSED TO BE GRANTED. 5. THE COMPANY CAN ONLY BE APPOINTED AS PERSON WILLING TO BUY THE SHARES WITH THE AGREEMENT OF THE APPLICANT. 6. IF THE APPLICANT ACCEPTS THE PERSON(S) WILLING TO BUY THE SHARES ON OFFER, THE PRICE OF THE SHARES WILL BE DETERMINED BY THE COMPANY ACCOUNTANT IF HE IS AN INDEPENDENT ACCOUNTANT AND OTHERWISE BY AN EXPERT APPOINTED BY THE COURT (KANTONRECHTER) WITHIN WHOSE DISTRICT THE COMPANY IS STATUTARILY ESTABLISHED, UNLESS THE PARTIES AGREE OTHERWISE. 7. THE APPLICANT MAKING THE OFFER IS ENTITLED TO WITHDRAW HIS OFFER WITHIN A MONTH AFTER BEING INFORMED OF THE PERSON(S) WILLING TO BUY THE SHARES AND THE PRICE. 8. THE APPLICATION FOR APPROVAL AND ALL NOTIFICATIONS REFERRED TO IN THIS ARTICLE MUST BE SEND BY REGISTERED MAIL UNLESS ALL SHAREHOLDERS AGREE UNANIMOUSLY OTHERWISE. ACQUISITION OF OWN SHARES ARTICLE 9 1. THE COMPANY MAY ONLY ACQUIRE SHARES IN ITS OWN CAPITAL FREE OF CHARGE, OR IF ALL OF THE FOLLOWING PROVISIONS ARE COMPLIED WITH: A. THE COMPANY'S OWN EQUITY MINUS THE ACQUISITION PRICE IS NOT SMALLER THAN THE PAID-IN AND CALLED UP PART OF THE SHARE CAPITAL PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW; B. THE NOMINAL AMOUNT OF THE SHARES IN ITS CAPITAL TO BE ACQUIRED AND THOSE ALREADY HELD BY THE COMPANY AND ITS SUBSIDIARIES DOES NOT AMOUNT TO MORE THAN HALF OF THE SUBSCRIBED CAPITAL; C. AUTHORISATION FOR THE ACQUISITION HAS BEEN GRANTED BY THE GENERAL MEETING OR BY ANOTHER COMPANY BODY APPOINTED BY IT. 2. THE AMOUNT OF THE COMPANY'S OWN CAPITAL ACCORDING TO THE MOST RECENTLY ADOPTED BALANCE SHEET, MINUS THE ACQUISITION PRICE FOR THE SHARES IN THE COMPANY'S CAPITAL, AND MINUS THE DISTRIBUTIONS OUT OF THE PROFITS OR RESERVES TO OTHERS WHICH WERE OWED BY THE COMPANY AND ITS SUBSIDIARIES AFTER THE DATE THE BALANCE WAS ADOPTED, DETERMINES THE VALIDITY OF THE ACQUISITION. IF MORE THAN SIX MONTHS HAVE PASSED AFTER A CLOSE OF THE FINANCIAL YEAR WITHOUT ANNUAL ACCOUNTS HAVING BEEN ADOPTED, THE ACQUISITION IN ACCORDANCE WITH PARAGRAPH 1 IS NOT PERMITTED. 3. THE PREVIOUS PARAGRAPHS DO NO APPLY TO SHARES ACQUIRED BY THE COMPANY BY OPERATION OF LAW. 4. ACQUISITION BY THE COMPANY OF NOT FULLY PAID-UP SHARES IN HER OWN CAPITAL IS VOID. ISSUE AND TRANSFER OF SHARES ARTICLE 10 1. FOR ISSUE OF SHARES AFTER INCORPORATION OR FOR THE TRANSFER OF SHARES OR FOR THE CREATION OR TRANSFER OF A LIMITED RIGHT THEREON, A NOTARIAL DEED IS REQUIRED. 2. UNLESS THE COMPANY HERSELF IS A PARTY TO THE TRANSFER, THE RIGHTS ATTACHED TO THE SHARES MAY NOT BE EXERCISED BEFORE THE ACKNOWLEDGEMENT BY THE COMPANY - WHETHER OF NO OF HER OWN ACCORD - OF THE TRANSFER, OR BEFORE THE TRANSFER HAS BEEN SERVED TO THE COMPANY. MANAGEMENT ARTICLE 11 1. THE COMPANY IS MANAGED BY A BOARD OF MANAGEMENT, CONSISTING OF AT LEAST ONE OR MORE MANAGING DIRECTORS A AND AT LEAST ONE OR MORE MANAGING DIRECTORS B. 2. THE GENERAL MEETING DETERMINES THE NUMBER OF MANAGING DIRECTORS A AND MANAGING DIRECTORS B. MANAGING DIRECTORS B NEED TO BE RESIDENTS OF THE NETHERLANDS. 3. IF A VACANCY ARISES IN THE BOARD OF MANAGING DIRECTORS, THE BOARD OF MANAGING DIRECTORS RETAINS ITS POWERS. 4. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ONE OR MORE DIRECTORS B, THE GENERAL MEETING WILL - WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE - MAKE TEMPORARILY PROVISIONS. IN THE EVENT OF THE ABSENCE OR FAILURE TO APPEAR OF ALL THE DIRECTORS, OR OF THE SOLE DIRECTOR, THE GENERAL MEETING WILL, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1. OF THIS ARTICLE, MAKE TEMPORARILY PROVISIONS. APPOINTMENT, DISMISSAL AND SALARIES OF MANAGING DIRECTORS ARTICLE 12 1. THE MANAGING DIRECTORS ARE APPOINTED BY THE GENERAL MEETING. 2. THE GENERAL MEETING WILL DETERMINE THE SALARIES AND OTHER CONDITIONS OF EMPLOYMENT OF EVERY MANAGING DIRECTOR. 3. MANAGING DIRECTORS MAY BE SUSPENDED OR DISMISSED BY THE GENERAL MEETING AT ANY TIME. 4. THE BOARD OF MANAGING DIRECTORS ADOPT A CHARTER, SETTING OUT RULES ON THE DECISION MAKING PROCESS OF THE BOARD OF MANAGING DIRECTORS. THE CHARTER REQUIRES THE APPROVAL OF THE GENERAL MEETING. 5. THE BOARD OF MANAGING DIRECTORS MAY ADOPT AN ALLOCATION OF DUTIES STATING FOR WHICH DUTY EACH MANAGING DIRECTOR HAS A PRIME RESPONSIBILITY. SUCH ALLOCATION OF DUTIES REQUIRES THE APPROVAL OF THE GENERAL MEETING. 6. THE BOARD OF MANAGEMENT MEETS AS OFTEN AS THE BOARD DEEMS NECESSARY. VALID RESOLUTIONS MAY ONLY BE ADOPTED BY THE BOARD OF MANAGEMENT IF AT LEAST ONE DIRECTOR A AND TWO DIRECTORS B ARE PRESENT. ALL RESOLUTIONS OF THE BOARD OF MANAGEMENT ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST. THE BOARD OF MANAGEMENT MAY ALSO ADOPT BOARD RESOLUTIONS BY TELEPHONE OR TELEX, OR ANY OTHER PROPER MEANS OF COMMUNICATION (INTERNET, E-MAIL). APPROVAL OF MANAGEMENT DECISIONS ARTICLE 13 1. THE GENERAL MEETING MAY SUBMIT RESOLUTIONS OF THE BOARD OF MANAGING DIRECTORS TO ITS APPROVAL. SUCH RESOLUTIONS ARE TO BE CLEARLY DEFINED AND NOTIFIED IN WRITING TO THE BOARD OF MANAGING DIRECTORS. 2. THE APPROVAL REFERRED TO IN THE PREVIOUS PARAGRAPH DOES NOT HAVE TO BE GIVEN FOR EACH INDIVIDUAL CASE IF IT HAS BEEN GRANTED IN A GENERAL SENSE. 3. THE BOARD OF MANAGING DIRECTORS HAS TO ACT IN ACCORDANCE WITH THE DIRECTIONS OF THE GENERAL MEETING CONCERNING THE FINANCIAL, ECONOMICAL, SOCIAL AND PERSONNEL MANAGEMENT. REPRESENTATION OF THE COMPANY ARTICLE 14 1. THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. 2. IF THE COMPANY HAS CONFLICTING INTERESTS WITH ONE OR MORE MANAGING DIRECTORS, THE COMPANY MAY, WITH DUE OBSERVANCE OF THE PROVISIONS OF PARAGRAPH 1 OF THIS ARTICLE, STILL BE REPRESENTED BY THAT MANAGING DIRECTOR. THE GENERAL MEETING IS ALWAYS EMPOWERED TO APPOINT ONE OR MORE PERSONS FOR THIS PURPOSE. 3. LEGAL ACTS BETWEEN THE COMPANY AND THE HOLDER OF ALL THE SHARES IN THE CAPITAL OF THE COMPANY HAVE TO BE LAID DOWN IN WRITING IF THE COMPANY HAS BEEN REPRESENTED BY THE SHAREHOLDER. THE OBLIGATION TO LAY DOWN THE LEGAL ACT IN WRITING ALSO APPLIES IF THE COMPANY IS REPRESENTED BY A PERSON WHO IS ENTITLED TO A MATRIMONIAL COMMUNITY OF GOODS OF WHICH ALL SHARES ARE A PART. 4. FOR THE APPLICATION OF PARAGRAPH 3, SHARES HELD BY THE COMPANY OR ITS SUBSIDIARIES ARE NOT TAKEN INTO ACCOUNT. PARAGRAPH 3 DOES NOT APPLY IF THE LEGAL ACTS, AND THEIR CONDITIONS AS AGREED ON, ARE PART OF THE CUSTOMARY CONDUCT OF THE BUSINESS OF THE COMPANY. GENERAL MEETING ARTICLE 15 1. THE ANNUAL GENERAL MEETING IS HELD NO MORE THAN SIX MONTHS AFTER THE END OF THE FINANCIAL YEAR. 2. THE AGENDA OF THAT MEETING WILL CONTAIN AT LEAST THE FOLLOWING POINTS: A. THE ANNUAL REPORT; B. ADOPTION OF THE ANNUAL ACCOUNTS; C. DETERMINATION OF THE DISTRIBUTION OF PROFITS. 3. EXTRAORDINARY GENERAL MEETINGS ARE HELD WHENEVER ONE OF THE MANAGING DIRECTORS CONSIDERS THIS DESIRABLE, OR ONE OR MORE SHAREHOLDERS, COLLECTIVELY REPRESENTING AT LEAST ONE TENTH OF THE ISSUED SHARE CAPITAL, REQUEST THIS IN WRITING, DETAILING THE SUBJECTS TO BE DEALT WITH. PLACE AND CALLING OF THE MEETING ARTICLE 16 1. THE GENERAL MEETINGS WILL BE HELD IN AMSTERDAM, ROTTERDAM, THE HAGUE OR HAARLEMMERMEER (SCHIPHOL AIRPORT). 2. ALL THE SHAREHOLDERS MUST BE NOTIFIED OF A GENERAL MEETING. 3. THE GENERAL MEETING IS CALLED BY THE BOARD OF MANAGING DIRECTORS BY LETTERS SENT TO THE ADDRESSES STATED IN THE REGISTER OF SHAREHOLDERS. 4. THE LETTERS CONTAIN THE TIME AND PLACE OF THE GENERAL MEETING, AS WELL AS THE SUBJECTS TO BE DEALT WITH. 5. THE GENERAL MEETING WILL BE CALLED NO LATER THAN FIFTEEN DAYS BEFORE THE DAY OF THE GENERAL MEETING. CHAIRMANSHIP ARTICLE 17 THE GENERAL MEETING CHOOSES ITS OWN CHAIRMAN. MINUTES ARTICLE 18 1. MINUTES OF THE BUSINESS OF THE GENERAL MEETING SHALL BE DRAWN UP, WHICH ARE SIGNED BY THE CHAIRMAN OF THE GENERAL MEETING AND BY A PERSON APPOINTED BY HIM. 2. IF AN OFFICIAL RECORD OF THE BUSINESS OF THE GENERAL MEETING IS DRAWN UP BY A NOTARY, IT SUFFICES FOR THE CHAIRMAN OF THE GENERAL MEETING TO CO-SIGN THIS. RIGHTS RELATED TO THE MEETING ARTICLE 19 1. EACH SHAREHOLDER IS ENTITLED TO ATTEND AND SPEAK AT THE GENERAL MEETING. 2. EACH SHAREHOLDER MAY BE REPRESENTED AT THE GENERAL MEETING BY SOMEONE AUTHORISED IN WRITING. DECISION MAKING ARTICLE 20 1. EACH SHARE CONFERS THE RIGHT TO CAST ONE VOTE. 2. ALL RESOLUTIONS ARE ADOPTED WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST, UNLESS THESE ARTICLES OF ASSOCIATION REQUIRE A LARGER MAJORITY. 3. BLANK VOTES AND INVALID VOTES ARE CONSIDERED NOT TO HAVE BEEN CAST. 4. VOTING ON BUSINESS MATTERS OCCURS ORALLY; VOTING ON PERSONS TAKES PLACE IN WRITING BY UNSIGNED BALLOT. 5. IN THE CASE OF A TIE IN VOTES ON BUSINESS MATTERS, THE PROPOSAL HAS BEEN REJECTED. 6. IF NO ONE HAS ACQUIRED AN ABSOLUTE MAJORITY IN A VOTE ON PERSONS IN THE FIRST VOTE, A NEW, FREE VOTE IS HELD. IF AGAIN THERE IS NO ABSOLUTE MAJORITY, THERE IS ANOTHER VOTE BETWEEN THE TWO PERSONS WHO OBTAINED THE MOST VOTES BETWEEN THEM IN THE SECOND VOTE. IF NECESSARY, AN INTERIM VOTE IS HELD TO DECIDE BETWEEN WHICH TWO PERSONS THE NEW VOTE WILL BE HELD. IN THE CASE OF A TIE IN VOTES AFTER THE NEW VOTE LOTS WILL BE DRAWN BY THE CHAIRMAN OF THE GENERAL MEETING TO REACH A DECISION. 7. ALL PROPOSALS MAY BE ACCEPTED BY ACCLAMATION IF NONE OF THE PERSONS ENTITLED TO VOTE OPPOSES THIS. 8. NO VOTE MAY BE CAST IN THE GENERAL MEETING FOR A SHARE WHICH IS HELD BY THE COMPANY OR BY A SUBSIDIARY COMPANY. 9. IN DETERMINING TO WHAT EXTENT THE SHAREHOLDERS ARE VOTING, ATTENDING OR REPRESENTED, OR TO WHAT EXTENT THE SHARE CAPITAL IS MADE AVAILABLE OR REPRESENTED, THE SHARES FOR WHICH THE LAW STATES THAT NO VOTE CAN BE CAST, ARE NOT TAKEN INTO ACCOUNT. DECISION-MAKING WHEN THE ENTIRE SUBSCRIBED CAPITAL IS PRESENT ARTICLE 21 THE GENERAL MEETING MAY ADOPT RESOLUTIONS REGARDING ALL SUBJECTS WHICH ARISE, PROVIDED THAT THERE IS AN UNANIMOUS VOTE, IF ALL THE SHAREHOLDERS ARE PRESENT, EVEN IF THE PROVISIONS ON THE PLACE AND CALLING OF THE GENERAL MEETING HAVE NOT BEEN COMPLIED WITH. DECISION-MAKING WITHOUT CALLING A GENERAL MEETING ARTICLE 22 SHAREHOLDERS MAY ALSO ADOPT RESOLUTIONS WITHOUT CALLING A GENERAL MEETING, PROVIDED THAT ALL THE SHAREHOLDERS HAVE DECLARED TO BE IN FAVOUR OF THE PROPOSAL IN WRITING, BY TELEGRAPH, TELEX OR FAX. FINANCIAL YEAR ARTICLE 23 THE FINANCIAL YEAR COINCIDES WITH THE CALENDAR YEAR. ANNUAL ACCOUNTS ARTICLE 24 1. THE BOARD OF MANAGING DIRECTORS WILL DRAW UP THE ANNUAL ACCOUNTS, CONSISTING OF THE BALANCE SHEETS AND A PROFIT AND LOSS ACCOUNT, WITH AN EXPLANATION THERETO, WITHIN FIVE MONTHS OF THE END OF THE FINANCIAL YEAR, UNLESS THIS PERIOD HAS BEEN EXTENDED BY THE GENERAL MEETING FOR A MAXIMUM OF SIX MONTHS ON GROUNDS OF SPECIAL CIRCUMSTANCES. 2. THE ANNUAL ACCOUNTS ARE SIGNED BY ALL MANAGING DIRECTORS; IF ANY SIGNATURE IS MISSING, THE REASON FOR THIS IS STATED. DISCHARGE OF THE MANAGEMENT ARTICLE 25 THE UNCONDITIONAL ADOPTION OF THE ANNUAL ACCOUNTS BY THE GENERAL MEETING DISCHARGES, SUBJECT TO LEGAL LIMITATIONS, THE MANAGING DIRECTORS FOR THEIR MANAGEMENT FOR THE FINANCIAL YEAR CONCERNED. DIVIDEND ARTICLE 26 1. THE PROFIT IS ENTIRELY AT THE DISPOSAL OF THE GENERAL MEETING. 2. THE COMPANY MAY ONLY MAKE DISTRIBUTIONS TO SHAREHOLDERS AND OTHERS ENTITLED TO PROFITS, IN AS FAR AS ITS EQUITY IS LARGER THAN THE PAID-UP AND CALLED PART OF THE CAPITAL, PLUS THE RESERVES WHICH MUST BE MAINTAINED BY LAW. 3. DISTRIBUTION OF PROFITS OCCURS AFTER THE ANNUAL ACCOUNTS HAVE BEEN ADOPTED, EVIDENCING THAT SUCH IS JUSTIFIED. 4. THE COMPANY MAY ONLY MAKE INTERIM DISTRIBUTIONS IF THE PROVISIONS OF PARAGRAPH 2 HAVE BEEN COMPLIED WITH. 5. NO PROFIT IS PAID ON SHARES TO THE COMPANY. 6. THE CLAIM TO DIVIDEND EXPIRES AFTER FIVE YEARS AMENDMENTS TO THE ARTICLES OF ASSOCIATION AND DISSOLUTION OF THE COMPANY ARTICLE 27 1. A RESOLUTION TO AMEND THE ARTICLES OF ASSOCIATION, OR TO DISSOLVE THE COMPANY, MAY ONLY BE ADOPTED BY THE GENERAL MEETING. 2. IN CALLING A GENERAL MEETING IN WHICH THERE SHALL BE DEALT WITH A PROPOSAL TO AMEND THE ARTICLES OF ASSOCIATION, THE TEXT OF THE PROPOSED AMENDMENT TO THE ARTICLES OF ASSOCIATION SHALL BE INCLUDED IN THE NOTIFICATION. IN ADDITION, THIS TEXT WILL BE MADE AVAILABLE AT THE COMPANY'S OFFICES FOR INSPECTION BY SHAREHOLDERS FROM THE DAY THE MEETING IS CALLED UNTIL AFTER THE MEETING. LIQUIDATION ARTICLE 28 1. FOLLOWING THE DISSOLUTION OF THE COMPANY, THE LIQUIDATION WILL BE EFFECTED BY THE MANAGING DIRECTORS, UNLESS THE GENERAL MEETING RESOLVES OTHERWISE. 2. THE GENERAL MEETING DETERMINES THE REMUNERATION OF THE LIQUIDATORS. 3. DURING THE LIQUIDATION, THE PROVISIONS OF THE ARTICLES OF ASSOCIATION WILL REMAIN IN FORCE IN AS FAR AS POSSIBLE, SUCH THAT THE PROVISIONS ON THE BOARD OF MANAGING DIRECTORS APPLY TO THE LIQUIDATORS. 4. ANYTHING REMAINING AFTER PAYMENT TO THE CREDITORS IS PAID TO THE SHAREHOLDERS IN PROPORTION TO THE NUMBER OF SHARES THEY OWN. 5. THE BOOKS AND RECORDS OF THE COMPANY WILL REMAIN WITH THE PERSON APPOINTED FOR THIS PURPOSE BY THE GENERAL MEETING FOR THE PERIOD REQUIRED BY THE LAW. CONCLUDING DECLARATIONS THE APPEARER FURTHER DECLARED: - - THAT EIGHTEEN THOUSAND ONE HUNDRED FIFTY TWO (18.152) SHARES OF THE AUTHORISED CAPITAL, NUMBERED 1 UP TO AND INCLUDING 18.152, EACH SHARE HAVING A PAR VALUE OF ONE EURO (EURO 1,=), HAVE BEEN PLACED WITH THE INCORPORATOR, SO THAT THE SUBSCRIBED CAPITAL AMOUNTS TO EIGHTEEN THOUSAND ONE HUNDRED FIFTY TWO EURO (EURO 18.152,=). - - THAT FOR THE BENEFIT OF THE COMPANY THE INCORPORATOR HAS AGREED TO PAY UP HIS SHARES IN FULL IN MONEY, WHICH PAYMENT HAS BEEN EFFECTED, WHICH APPEARS FROM THE STATEMENT TO BE ATTACHED TO THIS DEED AS REFERRED TO IN THE LAW, WHICH PAYMENT IS HEREBY ACCEPTED BY THE COMPANY. ANY SURPLUS PAYMENT TRANSFERRED BY THE INCORPORATOR TO THE BANK ACCOUNT OF THE COMPANY, WILL BE ALLOCATED TO THE SHARE PREMIUM RESERVE OF THE SHARES. - - THAT PAYMENT IN FOREIGN CURRENCY IS PERMITTED. - - THAT THE INITIAL MANAGING DIRECTORS A SHALL BE: A. MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE, WARWICKSHIRE B96 6PA, UNITED KINGDOM, THATCHBROOK, SAMBOURNE LANE, BORN IN MANSFIELD, UNITED KINGDOM, ON THE FIFTH DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-NINE, OF BRITISH NATIONALITY, PASSPORT NUMBER 011822240; AND B. MR. JOHN BRYANT, RESIDING AT WIMBLEDON, SW19 7HT LONDON, UNITED KINGDOM, 105 HOME PARK ROAD, BORN IN CROYDON, UNITED KINGDOM, ON THE ELEVENTH DAY OF JUNE NINETEEN HUNDRED AND FORTY-SIX, OF BRITISH NATIONALITY, PASSPORT NUMBER 500223488; - - THAT THE INITIAL MANAGING DIRECTORS B SHALL BE: A. MR. PETER DEEGE, RESIDING AT (1311 HB) ALMERE, THE NETHERLANDS, MAURICE CHEVALIERSTRAAT 4, BORN IN ROTTERDAM, THE NETHERLANDS, ON THE NINTH DAY OF DECEMBER NINETEEN HUNDRED AND FIFTY, OF DUTCH NATIONALITY, PASSPORT NUMBER M017374; B. MR. JOHAN VAN BELLEN, RESIDING AT (3602 XK) MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN IN CURACAO, THE NETHERLANDS ANTILLES, ON THE TWENTY-FIRST DAY OF AUGUST NINETEEN HUNDRED AND FIFTY-THREE, OF DUTCH NATIONALITY, PASSPORT NUMBER N11859491; C. MR. HENDRIK JUSTUS WIRIX, RESIDING AT (1191 EW) OUDERKERK AAN DEN AMSTEL, THE NETHERLANDS, H. VAN AVERCAMPWEG 25, BORN IN ARNHEM, THE NETHERLANDS, ON THE THIRD DAY OF MAY NINETEEN HUNDRED AND FORTY-SEVEN, OF DUTCH NATIONALITY, PASSPORT NUMBER L273346; AND D. MR. LOUIS FRICOT, RESIDING AT (1181 RP) AMSTELVEEN, THE NETHERLANDS, CHARLOTTE VAN MONTPENSIERLAAN 73, BORN IN HULST, THE NETHERLANDS, ON THE SIXTEENTH DAY OF APRIL NINETEEN HUNDRED AND FORTY-ONE, OF DUTCH NATIONALITY, PASSPORT NUMBER L286090. - - THAT THE FIRST OFFICE ADDRESS OF THE COMPANY SHALL BE: (1077 ZX) AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105. - - THAT THE FIRST FINANCIAL YEAR SHALL END ON THE THIRTY-FIRST DAY OF DECEMBER, NINETEEN HUNDRED AND NINETY-NINE. - - THAT THE MINISTERIAL DECLARATION OF NON-OBJECTION, AS REFERRED TO IN ARTICLE 2:175 OF THE DUTCH CIVIL CODE WAS GRANTED ON THE THIRTEENTH DAY OF JULY, NINETEEN HUNDRED AND NINETY-NINE, UNDER NUMBER B.V. 1081836 AND IS ATTACHED TO THIS DEED. POWER OF ATTORNEY THE AFOREMENTIONED POWER OF ATTORNEY APPEAR SUFFICIENTLY, TO ME, CIVIL LAW NOTARY, FROM ONE (1) PRIVATE DEED, FAX COPY OF WHICH POWER OF ATTORNEY WILL BE ATTACHED TO THIS DEED. THE APPEARER IS KNOWN TO ME, CIVIL LAW NOTARY, AND THE IDENTITY OF THE APPEARER HAS BEEN ESTABLISHED BY ME, CIVIL LAW NOTARY, BY MEANS OF THE ABOVEMENTIONED IDENTITY DOCUMENT. WHEREOF AN ORIGINAL DEED WAS EXECUTED IN ROTTERDAM ON THE DATE STATED ABOVE. AFTER THE CONTENTS OF THIS DEED HAVE BEEN STATED TO THE APPEARER AND SHE DECLARED THAT SHE HAD NOTED THE CONTENTS OF THE DEED AND DID NOT DESIRE THE DEED TO BE READ OUT FULL, AFTER BEING READ OUT IN PART, THIS DEED WAS IMMEDIATELY SIGNED BY APPEARER AND ME, CIVIL LAW NOTARY. (SIGNED: ) S. TULTAK, P.H. BOLLAND ISSUED FOR TRUE COPY EX-99 55 0055.txt CERTIFICATE OF INC. OF CINERGY GLOBAL 4 B.V. Cinergy/diversen/certificate/cinergy4.doc PB/ST MID81450/007 CERTIFICATE OF INCORPORATION WITH RESPECT TO CINERGY GLOBAL 4 B.V. THE UNDERSIGNED, MR PIETER HEYME BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, DECLARES THAT: 1. CINERGY GLOBAL 4 B.V. - HEREINAFTER REFERRED TO AS: THE "COMPANY" - IS A PRIVATE COMPANY WITH LIMITED LIABILITY, ORGANISED UNDER THE LAWS OF THE NETHERLANDS, HAVING ITS REGISTERED OFFICE AT AMSTERDAM, THE NETHERLANDS, AND HAVING ITS OFFICES AT 1077 ZX AMSTERDAM, THE NETHERLANDS, STRAWINSKYLAAN 3105, 7TH FLOOR, AND BEING REGISTERED IN THE TRADEREGISTER OF THE CHAMBER OF COMMERCE IN AMSTERDAM, THE NETHERLANDS, UNDER NUMBER 34.119.334; THE COMPANY HAS BEEN INCORPORATED BY NOTARIAL DEED OF INCORPORATION EXECUTED ON THE 15TH DAY OF JULY, 1999; --------------------- 2. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE ARTICLES OF ASSOCIATION OF THE COMPANY HAVE BEEN ADOPTED BY DEED OF INCORPORATION, EXECUTED BEFORE MR. P.H. BOLLAND, CIVIL LAW NOTARY, OFFICIATING IN ROTTERDAM, THE NETHERLANDS, ON THE 15TH DAY OF JULY, 1999. THE ARTICLES OF ASSOCIATION HAVE NOT BEEN AMENDED SINCE; 3. ACCORDING TO ARTICLE 2 OF AN UNOFFICIAL ENGLISH OFFICE TRANSLATION OF THE RECENT ARTICLES OF ASSOCIATION OF THE COMPANY, THE OBJECTS OF THE COMPANY ARE: A. TO FINANCE ENTERPRISES AND COMPANIES; B. TO BORROW, TO LEND AND TO RAISE FUNDS, INCLUDING THE ISSUE OF BONDS, PROMISSORY NOTES OR OTHER SECURITIES OR EVIDENCE OF INDEBTEDNESS AS WELL AS TO ENTER INTO AGREEMENTS IN CONNECTION WITH THE AFOREMENTIONED; C. TO SUPPLY ADVICE AND TO RENDER SERVICES TO ENTERPRISES AND COMPANIES WITH WHICH THE COMPANY FORMS A GROUP AND TO THIRD PARTIES; D. TO RENDER GUARANTEES, TO BIND THE COMPANY AND TO PLEDGE ITS ASSETS FOR OBLIGATIONS OF THE COMPANIES AND ENTERPRISES WITH WHICH IT FORMS A GROUP AND ON BEHALF OF THIRD PARTIES; E. TO INCORPORATE, TO PARTICIPATE IN ANY WAY WHATSOEVER, TO MANAGE, TO SUPERVISE, TO OPERATE AND TO PROMOTE ENTERPRISES, COMPANIES AND BUSINESSES; F. TO OBTAIN, ALIENATE, MANAGE AND EXPLOIT REGISTERED PROPERTY AND ITEMS OF PROPERTY IN GENERAL; G. TO TRADE IN CURRENCIES, SECURITIES AND ITEMS OF PROPERTY IN GENERAL; H. TO DEVELOP AND TRADE IN PATENT, TRADE MARKS, LICENSES, KNOW-HOW AND OTHER INDUSTRIAL PROPERTYRIGHTS; I. TO PERFORM ANY AND ALL ACTIVITY OF INDUSTRIAL, FINANCIAL OR COMMERCIAL NATURE; AS WELL AS EVERYTHING PERTAINING TO THE FOREGOING, RELATING THERETO OR CONDUCIVE THERETO, ALL IN THE WIDEST SENSE OF THE WORD. 4. ACCORDING TO THE REGISTRATION OF THE AFOREMENTIONED CHAMBER OF COMMERCE, THE FOLLOWING NATURAL PERSONS ARE MANAGING DIRECTOR OF THE COMPANY: - MR. JOHN BRYANT, RESIDING AT WIMBLEDON SW19 7HT, UNITED KINGDOM, 105 HOME PARK ROAD, BORN AT LONDON, UNITED KINGDOM, ON THE 11TH DAY OF JUNE, 1946, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; - MR. ANDREW MARK TURK, RESIDING AT SAMBOURNE WARWICKSHIRE, UNITED KINGDOM, SAMBOURNE LANE, BORN AT MANSFIELD, UNITED KINGDOM, ON THE 5TH DAY OF AUGUST, 1959, OF BRITISH NATIONALITY, MANAGING DIRECTOR A; - MR. LOUIS FRICOT, RESIDING AT 1181 RP AMSTELVEEN, THE NETHERLANDS, C. VAN MONTPENSIERLAAN 73, BORN AT HULST, THE NETHERLANDS, ON THE 16TH DAY OF APRIL, 1941, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. JOHAN VAN BELLEN, RESIDING AT 3602 XK MAARSSEN, THE NETHERLANDS, IJSVOGEL 27, BORN AT WILLEMSTAD, CURACAO, THE NETHERLANDS ANTILLES, ON THE 21ST DAY OF AUGUST, 1953, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. PAUL VAN BAARLE, RESIDING AT 3013 AL ROTTERDAM, THE NETHERLANDS, WEENA 399 D, BORN AT ROTTERDAM, THE NETHERLANDS, ON THE 15TH DAY OF SEPTEMBER, 1958, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; - MR. NANNO STEVEN VAN DER WERFF, RESIDING AT 1013 GD AMSTERDAM, THE NETHERLANDS, BINNEN VISSERSSTRAAT 14-4, BORN AT LEEUWARDEN, THE NETHERLANDS, ON THE 18TH DAY OF SEPTEMBER, 1964, OF DUTCH NATIONALITY, MANAGING DIRECTOR B; 5. ACCORDING TO THE ARTICLES OF ASSOCIATION OF THE COMPANY, THE COMPANY IS REPRESENTED AT LAW AND OTHERWISE BY THE BOARD OF MANAGEMENT, AND BY EACH MANAGING DIRECTOR A ACTING JOINTLY WITH A MANAGING DIRECTOR B. SIGNED AT ROTTERDAM ON APRIL 17, 2000. EX-99 56 0056.txt CINERGY UK By-Laws Of CINERGY UK, INC. (HEREINAFTER CALLED THE "CORPORATION") ================================================================= ARTICLE I OFFICES SECTION 1.1. OFFICES. The principal office of the Corporation shall be at 103 Foulk Road, Suite 256, Wilmington, Delaware 19803 (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 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. 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 determination by such court that indemnification of the director or officer is proper in the circumstances because he/she has met the applicable standards of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. SECTION 8.6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he/she is not entitled to be indemnified by the Corporation as authorized in this Article VIII. SECTION 8.7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other provision of these By-Laws, or similarly entitled under any agreement, contract, vote of stockholders or 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. As Adopted: August 30, 1996 As Amended: July 15, 1999 EX-99 57 0057.txt MEMORANDUM OF ASSOCIATION OF ANGLIAN STRAW LIMITED THE COMPANIES ACT 1985 PRIVATE COMPANY LIMITED BY SHARES MEMORANDUM OF ASSOCIATION OF ANGLIAN STRAW LIMITED * 1 The Company's name is "ANGLIAN STRAW LIMITED" * 2 The Company registered office is to be situated 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. * The Company name changed by special resolution passed on 20 March 1996 ** A new objects clause 3 was inserted by special resolution passed on 9 September 1998. (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 Company's share capital is(pound)1000 divided into 1000 shares of(pound)1.00 each. *** *** Changed by resolution dated 31 May 1990 EX-23 58 0058.txt 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, 1999, of our report dated January 26, 2000 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, 1999. It should be noted that we have performed no audit procedures subsequent to January 26, 2000, 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, 1999. Arthur Andersen LLP Cincinnati, Ohio April 27, 2000 EX-99 59 0059.txt FINANCIAL STATEMENTS
CINERGY CORP. CONSOLIDATING STATEMENTS OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1999 (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 $ - $ - $2,120,594 $2,108,475 Affiliated companies - 416,342 54,267 27,231 Gas Non-affiliated companies - - 374,390 - Affiliated companies - - 1,623 - Other - - - - ----------- ------------ ------------------ ------------- - 416,342 2,550,874 2,135,706 OPERATING EXPENSES Fuel used in electric production - - 340,593 396,644 Gas purchased - - 171,997 - Purchased and exchanged power Non-affiliated companies - - 701,767 769,005 Affiliated companies - - 24,130 48,004 Operation and maintenance 7,052 400,500 416,257 460,707 Depreciation and amortization - 6,869 204,468 136,402 Taxes other than income taxes 308 8,533 212,193 52,920 ----------- ------------ ------------------ ------------- 7,360 415,902 2,071,405 1,863,682 OPERATING INCOME (LOSS) (7,360) 440 479,469 272,024 EQUITY IN EARNINGS OF CONSOLIDATED SUBSIDIARIES 423,084 - - - EQUITY IN EARNINGS OF UNCONSOLIDATED SUBSIDIARIES 2,753 - - - GAIN ON SALE OF INVESTMENT IN UNCONSOLIDATED SUBSIDIARY - - - - MISCELLANEOUS - NET 17,456 443 (2,480) 655 INTEREST 43,812 369 99,737 86,265 ----------- ------------ ------------------ ------------- INCOME (LOSS) BEFORE TAXES 392,121 514 377,252 186,414 INCOME TAXES (11,520) 514 143,676 69,215 PREFERRED DIVIDEND REQUIREMENTS OF SUBSIDIARIES - - - - ----------- ------------ ------------------ ------------- NET INCOME (LOSS) $403,641 $ - $233,576 $ 117,199 PREFERRED DIVIDEND REQUIREMENT - - 856 4,601 ----------- ------------ ------------------ ------------- INCOME APPLICABLE TO COMMON STOCK $403,641 $ - $232,720 $ 112,598 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, 1999 (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 $ 26,252 $ 57,578 $ - $4,312,899 Affiliated companies - - (497,840) - Gas Non-affiliated companies 1,221,756 - - 1,596,146 Affiliated companies - - (1,623) - Other 24,991 3,852 - 28,843 ----------- ------------ ---------- ----------- 1,272,999 61,430 (499,463) 5,937,888 OPERATING EXPENSES Fuel used in electric production 1,261 22,806 - 761,304 Gas purchased 1,212,115 - (119) 1,383,993 Purchased and exchanged power Non-affiliated companies 28,221 - - 1,498,993 Affiliated companies - - (72,134) - Operation and maintenance 59,551 46,293 (409,306) 981,054 Depreciation and amortization 6,242 6,802 (6,963) 353,820 Taxes other than income taxes 2,023 168 (10,644) 265,501 ----------- ------------ ---------- ----------- 1,309,413 76,069 (499,166) 5,244,665 OPERATING INCOME (LOSS) (36,414) (14,639) (297) 693,223 EQUITY IN EARNINGS OF CONSOLIDATED SUBSIDIARIES - - (423,084) - EQUITY IN EARNINGS OF UNCONSOLIDATED SUBSIDIARIES (1,565) 59,586 (2,753) 58,021 GAIN ON SALE OF INVESTMENT IN UNCONSOLIDATED SUBSIDIARY - 99,272 - 99,272 MISCELLANEOUS - NET (2,379) 9,610 (21,274) 2,031 INTEREST 4,458 25,628 (25,491) 234,778 ------------ ------------- ---------- ----------- INCOME BEFORE TAXES (44,816) 128,201 (421,917) 617,769 INCOME TAXES (25,118) 30,736 1,168 208,671 PREFERRED DIVIDEND REQUIREMENTS OF SUBSIDIARIES - - 5,457 5,457 ------------ ------------- ---------- ----------- NET INCOME (LOSS) ($ 19,698) $ 97,465 ($428,542) $ 403,641 PREFERRED DIVIDEND REQUIREMENT - - (5,457) - ------------ ------------- ---------- ----------- INCOME APPLICABLE TO COMMON STOCK ($ 19,698) $ 97,465 ($423,085) $ 403,641 AVERAGE COMMON SHARES OUTSTANDING $ 158,863 EARNINGS PER COMMON SHARE $ 2.54 EARNINGS PER COMMON SHARE - ASSUMING DILUTION $ 2.53 DIVIDENDS DECLARED PER COMMON SHARE $ 1.80 1/ See accompanying consolidating statement of income (loss).
CINERGY CORP. CONSOLIDATING BALANCE SHEET DECEMBER 31, 1999 (dollars in thousands) Consolidated Cinergy Cinergy The Cincinnati Gas Corp. Services, Inc. & Electric Company 1/ ----------------------------------------------------- ASSETS CURRENT ASSETS Cash and cash equivalents $ 12,353 $ 1,224 $ 9,554 Restricted deposits - 496 132 Notes receivable - - - Notes receivable from affiliated companies - 6,707 - Accounts receivable - net 639 323 279,591 Accounts receivable from affiliated companies 276,086 42,795 12,718 Materials, supplies, and fuel - at average cost - - 98,999 Prepayments and other 1,000 50 35,527 Energy risk management current assets - - 63,926 ------------- -------------- --------------------- 290,078 51,595 500,447 UTILITY PLANT - ORIGINAL COST In service Electric - - 4,875,633 Gas - - 824,427 Common - - 189,124 ------------- -------------- --------------------- - - 5,889,184 Accumulated depreciation - - 2,279,587 ------------- -------------- --------------------- - - 3,609,597 Construction work in progress - - 153,229 ------------- -------------- --------------------- Total utility plant - - 3,762,826 OTHER ASSETS Regulatory assets - - 536,224 Investments in consolidated subsidiaries 2,801,415 - - Investments in unconsolidated subsidiaries (4,100) - - Energy risk management non-current assets 7,368 Other 20,492 45,273 109,753 ------------- -------------- --------------------- 2,817,807 45,273 653,345 $ 3,107,885 $ 96,868 $ 4,916,618 1/ See accompanying consolidating balance sheets.
CINERGY CORP. CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1999 (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 cash equivalents $ 8,842 $ 32,982 $ 16,964 $ - $ 81,919 Restricted deposits - - - - 628 Notes receivable 481 - - - 481 Notes receivable from affiliated companies 60,360 - - (67,067) - Accounts receivable - net 253,022 134,033 38,459 1 706,068 Accounts receivable from affiliated companies 42,715 5,357 66 (379,737) - Materials, supplies, and fuel - at average cost 103,490 920 2,340 - 205,749 Prepayments and other 36,173 2,159 2,792 - 77,701 Energy risk management current assets 63,927 3,292 - - 131,145 -------------- ------------- ----------------- -------------- ----------- 569,010 178,743 60,621 (446,803) 1,203,691 UTILITY PLANT - ORIGINAL COST In service Electric 4,539,111 - - - 9,414,744 Gas - - - - 824,427 Common - - - - 189,124 -------------- ------------- ----------------- -------------- ---------- 4,539,111 - - - 10,428,295 Accumulated depreciation 1,980,290 - - - 4,259,877 -------------- ------------- ----------------- -------------- ---------- 2,558,821 - - - 6,168,418 Construction work in progress 95,825 - - - 249,054 -------------- ------------- ----------------- -------------- ---------- Total utility plant 2,654,646 - - - 6,417,472 OTHER ASSETS Regulatory assets 518,788 - - - 1,055,012 Investments in consolidated subsidiaries - - - (2,801,415) - Investments in unconsolidated subsidiaries - 282,061 76,792 4,100 358,853 Energy risk management non-current assets 7,368 11,888 - - 26,624 Other 85,024 92,202 202,552 - 555,296 -------------- ------------- ----------------- -------------- ---------- 611,180 386,151 279,344 (2,797,315) 1,995,785 $ 3,834,836 $ 564,894 $ 339,965 $ (3,244,118) $ 9,616,948 1/ See accompanying consolidating balance sheets.
CINERGY CORP. CONSOLIDATING BALANCE SHEET DECEMBER 31, 1999 (dollars in thousands) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Energy, Cinergy Corp. Services, Inc. & Electric Company 1/ Inc. 1/ ------------- -------------- -------------------- -------------- CAPITALIZATION AND LIABILITIES CURRENT LIABILITIES Accounts payable $15,815 $ 22,153 $ 253,115 $ 241,072 Accounts payable to affiliated companies 33,560 - 65,256 6,762 Accrued taxes 2,051 4,953 136,118 93,056 Accrued interest 3,131 - 17,375 26,989 Notes payable and other short-term obligations - - 234,702 232,597 Notes payable to affiliated companies - - 60,360 6,707 Long-term debt due within one year - - - 31,000 Energy risk management current liabilities - - 60,478 60,478 Other - 496 25,468 1,986 ------------- -------------- -------------------- -------------- 54,557 27,602 852,872 700,647 NON-CURRENT LIABILITIES Long-term debt 399,667 - 1,205,916 1,211,552 Deferred income taxes (438) (25,473) 720,168 460,748 Unamortized investment tax credits - - 104,655 42,895 Accrued pension and other postretirement benefit costs - 71,390 154,718 129,103 Amounts due to customers - income taxes - - 11,652 - Energy risk management non-current liabilities - - 57,644 57,645 Other 378 25,177 129,142 104,638 ------------- -------------- -------------------- -------------- 399,607 71,094 2,383,895 2,006,581 Total Liabilities 454,164 98,696 3,236,767 2,707,228 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption - - 20,686 71,911 COMMON STOCK EQUITY Common stock 1,589 - 762,136 - Common stock of subsidiaries - - - 539 Paid-in capital 1,597,554 156 562,851 411,198 Retained earnings (deficit) 1,064,319 - 335,144 642,569 Accumulated other comprehensive income (loss) (9,741) (1,984) (966) 1,391 ------------- -------------- -------------------- -------------- Total common stock equity 2,653,721 (1,828) 1,659,165 1,055,697 $ 3,107,885 $ 96,868 $ 4,916,618 $ 3,834,836
CINERGY CORP. CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1999 (dollars in thousands) Consolidated Consolidated Cinergy Cinergy Investments, Global Resources Consolidated Inc. 1/ Inc. 1/ Eliminations Cinergy Corp. ------------- ----------------- ------------- -------------- CAPITALIZATION AND LIABILITIES CURRENT LIABILITIES Accounts payable $ 189,468 $ 12,936 $ 378 $734,937 Accounts payable to affiliated companies 273,004 1,155 (379,737) - Accrued taxes (10,606) (6,306) - 219,266 Accrued interest - 1,859 - 49,354 Notes payable and other short-term obligations 20,000 62,895 - 550,194 Notes payable to affiliated companies - - (67,067) - Long-term debt due within one year - - - 31,000 Energy risk management current liabilities 5,726 - - 126,682 Other - 48,824 - 76,774 ------------- ----------------- -------------- ------------ 477,592 121,363 (446,426) 1,788,207 NON-CURRENT LIABILITIES Long-term debt - 172,107 - 2,989,242 Deferred income taxes 894 17,732 1,187 1,174,818 Unamortized investment tax credits - - - 147,550 Accrued pension and other postretirement benefit costs 706 - - 355,917 Amounts due to customers - income taxes - - - 11,652 Energy risk management non-current liabilities 16,752 - - 132,041 Other 6,115 5,753 - 271,203 ------------- ----------------- -------------- ------------ 24,467 195,592 1,187 5,082,423 Total Liabilities 502,059 316,955 (445,239) 6,870,630 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption - - - 92,597 COMMON STOCK EQUITY Common stock - - (762,136) 1,589 Common stock of subsidiaries - - (539) - Paid-in capital 628,721 143,369 (1,746,295) 1,597,554 Retained earnings (deficit) (565,852) (112,673) (299,188) 1,064,319 Accumulated other comprehensive income (loss) (34) (7,686) 9,279 (9,741) ------------- ----------------- -------------- ------------ Total common stock equity 62,835 23,010 (2,798,879) 2,653,721 $ 564,894 $ 339,965 $ (3,244,118) $ 9,616,948
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, 1998 2,541,231 $ 739 $ 1,666,443 $ 975,648 Comprehensive income Net income (loss) 403,641 - 233,576 117,199 Other comprehensive income (loss) Foreign currency translation adjustment (9,781) - - - Minimum pension liability adjustment (1,239) (1,227) 158 (163) Unrealized gains on grantor and rabbi trusts 2,086 37 - 2,049 Comprehensive income (loss) total 394,707 (1,190) 233,734 119,085 Issuance of common stock - net 6,722 - - - Treasury shares purchased (233) - - - Treasury shares reissued 3,660 - - - Dividends on preferred stock - - (856) (4,601) Dividends on common stock (284,545) - (250,100) (35,900) Contributions from parent company - - - - Contribution from parent company for reallocation of taxes - 155 8,920 457 Other (7,821) (1,532) 1,024 1,008 BALANCE AT DECEMBER 31, 1999 $ 2,653,721 ($1,828) $ 1,659,165 $1,055,697
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, 1998 $ 78,136 $ 508,464 $(3,229,430) $2,541,231 Comprehensive income Net income (loss) (19,698) 97,465 (428,542) 403,641 Other comprehensive income (loss) Foreign currency translation adjustment - (9,758) 9,758 (9,781) Minimum pension liability adjustment (6) - 1,238 (1,239) Unrealized gains on grantor and rabbi trusts - - (2,086) 2,086 Comprehensive income (loss) total (19,704) 87,707 (419,632) 394,707 Issuance of common stock - net - - - 6,722 Treasury shares purchased - - - (233) Treasury shares reissued - - - 3,660 Dividends on preferred stock - - 5,457 - Dividends on common stock - (217,308) 503,308 (284,545) Contributions from parent company 4,500 (359,678) 355,178 - Contribution from parent company for reallocation of taxes 381 3,825 (13,738) - Other (478) - (22) (7,821) BALANCE AT DECEMBER 31, 1999 $62,835 $ 23,010 $(2,798,879) $2,653,721 1/ See accompanying consolidating statements of changes in common stock equity. 2/ Par values, authorized shares, and outstanding shares are as follows: Par Value Authorized shares Outstanding shares Issued shares (in thousands) Cinergy $0.01 600,000 158,665 259 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, 1999, 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. At December 31, 1999, Global Resources had 100 shares outstanding. 4/ Shares issued during 1999.
CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1999 (in thousands) Consolidated Consolidated Cinergy Cinergy The Cincinnati Gas & PSI Energy, Corp. Services, Inc. Electric Company 1/ Inc. ----------- -------------- -------------------- ------------- Operating Activities Net income $ 403,641 $ - $ 233,576 $ 117,199 Items providing or (using) cash currently: Depreciation and amortization - 6,869 204,468 136,402 Deferred income taxes and investment tax credits - net 411 2,637 2,366 102,878 Unrealized (gain) loss from energy risk management activities - - (27,245) (27,245) Equity in unconsolidated subsidiaries - - - - Equity in consolidated subsidiaries (423,084) - - - Gain on sale of investment in unconsolidated subsidiaries - - - - Allowance for equity funds used during construction - - (2,565) (1,068) Regulatory assets - net - - 14,325 (217,549) Changes in current assets and current liabilities Restricted deposits - (496) 1,041 2,414 Accounts and notes receivable, net of reserves on receivables sold (269,870) (5,592) 17,676 (118,183) Materials, supplies, and fuel - - 16,295 (23,045) Accounts payable 25,070 (8,648) 22,462 (270) Accrued taxes and interest (12,654) 2,376 (18,533) 32,809 Other items - net 863,567 4,376 19,500 42,491 ------------ ----------- ------------ ------------- Net cash provided by (used in) operating activities 587,081 1,522 483,366 46,833 Financing Activities Issuance of common stock 6,722 - - - Issuance of long-term debt 198,504 - 19,818 589,225 Retirement of preferred stock of subsidiaries - - (26) (8) Redemption of long-term debt - - (164,264) (379,484) Change in short-term debt (505,000) (53) 88 759 (36,804) Dividends on preferred stock - - (856) (4,601) Dividends on common stock (285,925) - (250,100) (35,900) ---------- ------------ ------------ ------------- Net cash provided by (used in) financing activities (585,699) (53) (306,669) 132,428 Investing Activities Construction expenditures (less allowance for equity funds used during construction) - (283) (194,132) (189,207) Acquisition of businesses - net of cash acquired - - - - Investments in unconsolidated subsidiaries - - - -` Sale of investment in unconsolidated subsidiaries - - - - ---------- ------------ ------------ ------------- Net cash provided by (used in) investing activities - (283) (194,132) (189,207) Net increase (decrease) in cash and temporary cash investments 1,382 1,186 (17,435) (9,946) Cash and temporary cash investments at beginning of period 10,971 38 26,989 18,788 ------------ ------------ ------------ ------------- Cash and temporary cash investments at end of period $ 12,353 $ 1,224 $ 9,554 $ 8,842 1/ See accompanying consolidating statements of cash flows.
CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1999 (in thousands) Consolidated Consolidated Cinergy Cinergy Global Consolidated Investments, Inc. 1/ Resources, Inc. 1/ Eliminations Cinergy Corp. --------------------- ------------------ ------------- ------------- Operating Activities Net income $ (19,698) $ 97,465 $ (428,542) $ 403,641 Items providing or (using) cash currently: Depreciation and amortization 6,242 6,802 (6,963) 353,820 Deferred income taxes and investment tax credits - net 2,984 (16,891) 1,682 96,067 Unrealized (gain) loss from energy risk management activities 7,298 - - (47,192) Equity in unconsolidated subsidiaries 2,664 (47,568) - (44,904) Equity in consolidated subsidiaries - - 423,084 - Gain on sale of investment in unconsolidated subsidiaries - (99,272) - (99,272) Allowance for equity funds used during construction - - - (3,633) Regulatory assets - net - - - (203,224) Changes in current assets and current liabilities Restricted deposits - - - 2,959 Accounts and notes receivable, net of reserves on receivables sold 8,445 28,780 220,183 (118,561) Materials, supplies, and fuel 3,236 1,073 (561) (3,002) Accounts payable 305,071 (9,520) (272,575) 61,590 Accrued taxes and interest (6,652) (8,752) - (11,406) Other items - net (27,003) (449,170) (498,026) (44,265) ------------ ----------- ------------ ------------- Net cash provided by (used in) operating activities 282,587 (497,053) (561,718) 342,618 Financing Activities Issuance of common stock - - - 6,722 Issuance of long-term debt - 22,400 1 829,948 Retirement of preferred stock of subsidiaries - - - (34) Redemption of long-term debt - (9,443) - (553,191) Change in short-term debt 20,000 26,640 52,952 (353,506) Dividends on preferred stock - - 5,457 - Dividends on common stock - (217,308) 503,308 (285,925) ---------- ------------ ------------ ------------- Net cash provided by (used in) financing activities 20,000 (177,711) 561,718 (355,986) Investing Activities Construction expenditures (less allowance for equity funds used during construction) (2,671) - - (386,293) Acquisition of businesses - net of cash acquired (24,500) - - (24,500) Investments in unconsolidated subsidiaries (270,386) (13,957) - (284,343) Sale of investment in unconsolidated subsidiaries - 690,269 - 690,269 ---------- ------------ ------------ ------------- Net cash provided by (used in) investing activities (297,557) 676,312 - (4,867) Net increase (decrease) in cash and temporary cash investments 5,030 1,548 - (18,235) Cash and temporary cash investments at beginning of period 27,952 15,416 - 100,154 ------------ ------------ ------------ ------------- Cash and temporary cash investments at end of period $ 32,982 $ 16,964 $ - $ 81,919 1/ See accompanying consolidating statements of cash flows.
EX-99 60 0060.txt FINANCIAL STATEMENTS
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1999 (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 $ 1,911,250 $ 206,103 $ - $ 563 $ - Affiliated companies 209,136 4,131 - - 22 Gas Non-affiliated companies 297,224 70,377 6,537 - - Affiliated companies 2,317 351 - - - ---------------- ------------- ------------ -------------- ----------- 2,419,927 280,962 6,537 563 22 OPERATING EXPENSES Fuel used in electric production 340,593 - - - - Gas purchased - Non-affiliated companies 134,199 34,266 3,532 - - Affiliated companies 883 424 - - - Purchased and exchanged power - - Non-affilitated companies 700,285 524 3 Affiliated companies 24,130 158,032 363 Operation and maintenance 376,684 38,611 1,277 92 - Depreciation and amortization 188,825 14,830 475 19 1 Taxes other than income taxes 207,731 4,136 278 13 3 ---------------- ------------- ------------ -------------- ----------- 1,973,330 250,823 5,562 490 4 OPERATING INCOME (LOSS) 446,597 30,139 975 73 18 EQUITY IN EARNINGS OF SUBSIDIARIES 14,902 - - - - MISCELLANEOUS - NET (1,259) (1,567) 12 - - INTEREST 94,522 6,114 124 - - ---------------- ------------- ------------ -------------- ----------- INCOME (LOSS) BEFORE TAXES 365,718 22,458 863 73 18 INCOME TAXES 132,142 10,184 314 27 6 ---------------- ------------- ------------ -------------- ----------- NET INCOME (LOSS) 233,576 12,274 549 46 12 PREFERRED DIVIDEND REQUIREMENT 856 - - - - ---------------- ------------- ------------ -------------- ----------- NET INCOME APPLICABLE TO COMMON STOCK $ 232,720 $ 12,274 $549 $46 $ 12
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1999 (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 $ - $ - $ 2,678 $ 2,120,594 Affiliated companies - - (159,022) 54,267 Gas Non-affiliated companies - 253 (1) 374,390 Affiliated companies - 1,142 (2,187) 1,623 ------------- ------------- ------------ ------------- - 1,395 (158,532) 2,550,874 OPERATING EXPENSES Fuel used in electric production - - - 340,593 Gas purchased Non-affiliated companies - - - 171,997 Affiliated companies - - (1,307) - Purchased and exchanged power - - - Non-affiliated companies 955 701,767 Affiliated companies (158,395) 24,130 Operation and maintenance 194 906 (1,507) 416,257 Depreciation and amortization - 318 - 204,468 Taxes other than income taxes 11 21 - 212,193 ------------- ------------- ------------ ------------- 205 1,245 (160,254) 2,071,405 OPERATING INCOME (LOSS) (205) 150 1,722 479,469 EQUITY IN EARNINGS OF SUBSIDIARIES - - (14,902) - MISCELLANEOUS - NET 1,979 - (1,645) (2,480) INTEREST 623 - (1,646) 99,737 ------------- ------------- ------------ ------------- INCOME (LOSS) BEFORE TAXES 1,151 150 (13,179) 377,252 INCOME TAXES 298 59 646 143,676 ------------- ------------- ------------ ------------- NET INCOME (LOSS) 853 91 (13,825) 233,576 PREFERRED DIVIDEND REQUIREMENT - - - 856 ------------- ------------- ------------ ------------- NET INCOME APPLICABLE TO COMMON STOCK $853 $ 91 $ (13,825) $ 232,720
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET DECEMBER 31, 1999 (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 cash equivalents $ 5,686 $ 3,641 $ 76 $ 107 $ 11 Restricted deposits 132 - - - - Notes receivable from affiliated companies 9,434 - - - - Accounts receivable - net 260,502 17,786 1,145 81 - Accounts receivable from affiliated companies 29,639 775 76 2 - Materials, supplies, and fuel - at average cost 91,302 7,654 43 - - Prepayments and other 35,305 219 3 - - Energy risk management current assets 63,926 - - - - ----------------- -------------- -------------- ----------------- ----------- 495,926 30,075 1,343 190 11 UTILITY PLANT - ORIGINAL COST In service Electric 4,652,445 222,035 - 590 563 Gas 620,909 173,011 16,318 - - Common 146,773 42,351 - - - ----------------- -------------- -------------- ----------------- ----------- 5,420,127 437,397 16,318 590 563 Accumulated depreciation 2,106,091 154,607 4,957 239 559 ----------------- -------------- -------------- ----------------- ----------- 3,314,036 282,790 11,361 351 4 Construction work in progress 138,763 13,761 702 3 - ----------------- -------------- -------------- ----------------- ----------- Total utility plant 3,452,799 296,551 12,063 354 4 OTHER ASSETS Regulatory assets 525,585 10,639 - - - Investments in consolidated subsidiaries 180,428 - - - - Energy Risk management non-current assets 7,368 - - - - Other 60,788 5,000 45 (8) 1 ----------------- -------------- -------------- ----------------- ----------- 774,169 15,639 45 (8) 1 $ 4,722,894 $ 342,265 $ 13,451 $ 536 $ 16
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1999 (dollars in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company --------------------------------------------------------------------- ASSETS CURRENT ASSETS Cash and cash equivalents $ 33 $ - $ - $ 9,554 Restricted deposits - - - 132 Notes receivable from affiliated companies - - (9,434) - Accounts receivable - net 13 64 - 279,591 Accounts receivable from affiliated companies 750 29 (18,553) 12,718 Materials, supplies, and fuel - at average cost - - - 98,999 Prepayments and other - - - 35,527 Energy risk management current assets - - - 63,926 -------------- ------------- ------------ --------------- 796 93 (27,987) 500,447 UTILITY PLANT - ORIGINAL COST In service Electric - - - 4,875,633 Gas - 14,189 - 824,427 Common - - - 189,124 -------------- ------------- ------------ --------------- - 14,189 - 5,889,184 Accumulated depreciation - 13,134 - 2,279,587 -------------- ------------- ------------ --------------- - 1,055 - 3,609,597 Construction work in progress - - - 153,229 -------------- ------------- ------------ --------------- Total utility plant - 1,055 - 3,762,826 OTHER ASSETS Regulatory assets - - - 536,224 Investments in consolidated subsidiaries - - (180,428) - Energy risk management non-current assets - - - 7,368 Other 43,605 322 - 109,753 -------------- ------------- ------------ --------------- 43,605 322 (180,428) 653,345 $ 44,401 $ 1,470 $ (208,415) $ 4,916,618
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET DECEMBER 31, 1999 (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. -------------------------------------------------------------------------------- CAPITALIZATION AND LIABILITIES CURRENT LIABILITIES Accounts payable $ 243,599 $ 8,487 $ 902 $ - $ - Accounts payable to affiliated companies 62,647 20,122 148 45 1 Accrued taxes 134,905 739 196 9 3 Accrued interest 16,030 1,298 44 3 - Notes payable and other short-term obligations 234,702 - - - - Notes payable to affiliated companies 31,205 37,752 837 - - Long term debt due within one year - - - - - Energy risk management current liabilities 60,478 - - - - Other 21,259 4,062 140 7 - ----------------- ------------- ------------- --------------- ----------- 804,825 72,460 2,267 64 4 NON-CURRENT LIABILITIES Long term debt 1,130,159 74,557 1,200 - - Deferred income taxes 692,101 23,000 989 69 (37) Unamortized investment tax credits 100,498 3,961 186 10 - Accrued pension and other postretirement benefit costs 141,855 12,333 530 - - Amounts due to customers - income taxes - 11,308 301 5 38 Energy risk management non-current liabilities 57,644 - - - - Other 115,961 12,596 567 8 - ----------------- ------------- ------------- --------------- ----------- 2,238,218 137,755 3,773 92 1 Total liabilities 3,043,043 210,215 6,040 156 5 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption 20,686 - - - - COMMON STOCK EQUITY Common stock 762,136 - - - - Common stock of subsidiaries - 8,780 538 20 1 Paid-in capital 562,851 20,142 80 16 4 Retained earnings (deficit) 335,144 103,128 6,793 344 6 Accumulated other comprehensive income (loss) (966) - - - - ----------------- ------------- ------------- --------------- ----------- Total common stock equity 1,659,165 132,050 7,411 380 11 $ 4,722,894 $ 324,265 $ 13,451 $ 536 $ 16
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEET (CONTINUED) DECEMBER 31, 1999 (dollars in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company --------------------------------------------------------------------- CAPITALIZATION AND LIABILITIES CURRENT LIABILITIES Accounts payable $ 58 $ 69 $ - $ 253,115 Accounts payable to affiliated companies - 847 (18,554) 65,256 Accrued taxes 251 64 2/ (49) 2/ 136,118 Accrued interest - - - 17,375 Notes payable and other short-term obligations - - - 234,702 Notes payable to affiliated companies - - (9,434) 60,360 Long term debt due within one year - - - - Energy risk management current liabilities - - - 60,478 Other - - - 25,468 ------------ -------------- ------------ -------------- 309 980 (28,037) 852,872 NON-CURRENT LIABILITIES Long term Debt 38,143 - (38,143) 1,205,916 Deferred income taxes 4,140 (94) - 720,168 Unamortized investment tax credits - - - 104,655 Accrued pension and other postretirement benefit costs - - - 154,718 Amounts due to customers - income taxes - - - 11,652 Energy risk management non-current liabilities - - - 57,644 Other 10 - - 129,142 ------------ -------------- ------------ -------------- 42,293 (94) (38,143) 2,383,895 Total liabilities 42,602 886 (66,180) 3,236,767 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption - - - 20,686 COMMON STOCK EQUITY Common stock - - - 762,136 Common stock of subsidiaries 25 - (9,364) - Paid-in capital - 531 (20,773) 562,851 Retained earnings (deficit) 1,774 53 (112,098) 335,144 Accumulated other comprehensive income (loss) - - - (966) ------------ -------------- ------------ -------------- Total common stock equity 1,799 584 (142,235) 1,659,165 $ 44,401 $ 1,470 $ (208,415) $4,916,618
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY DECEMBER 31, 1999 (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, 1998 $ 1,666,443 $ 128,818 $ 7,240 $ 391 $17 Comprehensive income Net income 233,576 12,274 549 46 12 Other comprehensive income Minimum pension liability adjustment 158 - - - - ---------------- -------------- ------------- ------------ ------------ Comprehensive income total 233,734 12,274 549 46 12 Dividends on preferred stock (856) - - - - Dividends on common stock (250,100) (9,659) (398) (50) (15) Contribution from parent for reallocation of taxes 8,920 617 20 (7) (3) Other 1,024 - - - - ---------------- -------------- ------------- ------------ ------------ BALANCE AT DECEMBER 31, 1999 $ 1,659,165 $ 132,050 $ 7,411 $ 380 $ 11
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (CONTINUED) DECEMBER 31, 1999 (dollars in thousands) Consolidated Tri-State KO The Cincinnati Improvement Transmission Gas & Electric Co. Co. Eliminations Company ------------------------------------------------------------ BALANCE AT DECEMBER 31, 1998 $ 946 $ 574 $ (137,986) $ 1,666,443 Comprehensive income Net income 843 91 (13,825) 233,576 Other comprehensive income Minimum pension liability adjustment - - - 158 ------------ ------------ -------------- ----------------- Comprehensive income total 853 91 (13,825) 233,734 Dividends on preferred stock - - (856) Dividends on common stock - (82) 10,204 (250,100) Contribution from parent for reallocation of taxes - 1 (628) 8,920 Other - - - 1,024 ----------- ------------ -------------- ----------------- BALANCE AT DECEMBER 31, 1999 $1,799 $ 584 $ (142,235) $ 1,659,165
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1999 (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 $ 233,576 $ 12,274 $ 549 $ 46 Items providing or (using) cash currently: Depreciation and amortization 188,825 14,830 475 19 Deferred income taxes and investment tax credits - net 2,868 (738) 34 - Allowance for equity funds used during construction (2,510) (36) (19) - Equity in earnings of consolidated subsidiaries (14,902) - - - Regulatory assets - net 14,187 138 - - Unrealized (gain) loss from energy risk management activities (27,245) - - - Changes in current assets and current liabilities Restricted Deposits 1,041 - - - Accounts and notes receivable, less accumulated provisions for doubtful accounts 26,052 (5,099) 512 (27) Materials, supplies, and fuel 15,706 615 (26) - Accounts payable 20,747 7,720 378 7 Accrued taxes and interest (15,539) (3,138) (199) 12 Other items - net 22,397 5,971 - 8 --------------- ------------ ----------- ------------ Net cash provided by (used in) operating activities 465,203 32,537 1,704 65 Financing Activities Issuance of long-term debt - 19,818 - - Retirement of preferred stock (26) - - - Redemption of long-term debt (144,264) (20,000) - - Change in short-term debt 76,624 5,935 61 - Dividends on preferred stock (856) - - - Dividends on common stock (250,100) (9,659) (398) (50) --------------- ------------ ----------- ------------ Net cash provided by (used in) financing activities (318,622) (3,906) (337) (50) Investing Activities Construction expenditures (less allowance for equity funds used during construction) (164,384) (28,234) (1,367) (8) --------------- ------------ ----------- ------------ Net cash provided by (used in) investing activities (164,384) (28,234) (1,367) (8) Net increase (decrease) in cash and temporary cash investments (17,803) 397 - 7 Cash and temporary cash investments at beginning of period 23,489 3,244 76 100 --------------- ------------ ----------- ------------ Cash and temporary cash investments at end of period $ 5,686 $ 3,641 $ 76 $ 107
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS (CONTINUED) FOR THE YEAR ENDED DECEMBER 31, 1999 (in thousands) Consolidated Miami Tri-State KO The Cincinnati Gas Power Corp. Improvement Co. Transmission Co. Eliminations & Electric Company -------------------------------------------------------------------------------- Operating Activities Net income $ 12 $ 853 $ 91 $ (13,825) $ 233,576 Items providing or (using) cash currently: Depreciation and amortization 1 - 318 - 204,468 Deferred income taxes and investment tax credits - net - 270 (68) - 2,366 Allowance for equity funds used during construction - - - - (2,565) Equity in earnings of consolidated subsidiaries - - - 14,902 - Regulatory assets - net - - - - 14,325 Unrealized (gain)loss from energy risk management activities - - - - (27,245) Changes in current assets and current liabilities Restricted Deposits - - - - 1,041 Accounts and notes receivable, less accumulated provision for doubtful accounts 1 (731) 8 (3,040) 17,676 Materials, supplies, and fuel - - - - 16,295 Accounts payable 1 (218) (364) (5,809) 22,462 Accrued taxes and interest 1 (336) 20 646 (18,533) Other items - net (4) 1,278 45 (10,195) 19,500 ---------- ------------ ------------ ---------- ------------- Net cash provided by (used in) operating activities 12 1,116 50 (17,321) 483,366 Financing Activities Issuance of long-term debt - - - - 19,818 Retirement of preferred stock - - - - (26) Redemption of long-term debt - - - - (164,264) Change in short-term debt - - - 6,139 88,759 Dividends on preferred stock - - - - (856) Dividends on common stock (15) - (50) 10,172 (250,100) ---------- ------------ ------------ ---------- --------------- Net cash provided by (used in) financing activities (15) - (50) 16,311 (306,669) Investing Activities Construction expenditures (less allowance for equity funds used during construction) - (1,149) - 1,010 (194,132) ---------- ------------ ------------ ---------- --------------- Net cash provided by (used in) investing activities - (1,149) - 1,010 (194,132) Net increase (decrease) in cash and temporary cash investments (3) (33) - - (17,435) Cash and temporary cash investments at beginning of period 14 66 - - 26,989 ---------- ------------ ------------ ---------- --------------- Cash and temporary cash investments at end of period $ 11 $ 33 - - $ 9,554
EX-99 61 0061.txt ITEM 6 PART III SUPPLEMENTAL INFORMATION EXHIBIT F-15 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 February 29, 2000, is set forth in the following table. AMOUNT AND NATURE NAME OF BENEFICIAL OWNER (1) OF BENEFICIAL OWNERSHIP (2) - ---------------------------- --------------------------- Neil A. Armstrong 13,250 shares James K. Baker 26,105 shares Michael G. Browning 111,920 shares Phillip R. Cox 73,188 shares Michael J. Cyrus 108,059 shares William J. Grealis 233,373 shares John A. Hillenbrand II 76,264 shares George C. Juilfs 36,396 shares Melvin Perelman 27,032 shares Thomas E. Petry 54,792 shares Jackson H. Randolph 267,726 shares James E. Rogers 736,553 shares Mary L. Schapiro 8,543 shares John J. Schiff, Jr. 61,617 shares (3) Philip R. Sharp 35,175 shares Dudley S. Taft 19,500 shares Larry E. Thomas 253,982 shares Oliver W. Waddell 37,899 shares All directors and executive officers as a group 3,460,597 shares (2) (representing 2.18% of the class) - ------------------- (1) No individual listed beneficially owned more than 0.464% of the outstanding shares of Cinergy's common stock. ITEM 6. PART III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES (CONTINUED) (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Armstrong-12,500; Mr. Baker-12,500; Mr. Browning-25,287; Mr. Cox-12,500; Mr. Grealis-113,937; Mr. Hillenbrand-12,500; Mr. Juilfs-12,500; Dr. Perelman-12,500; Mr. Petry-12,500; Mr. Randolph-141,258; Mr. Rogers-461,029; Ms. Schapiro-2,500; Mr. Schiff-12,500; Dr. Sharp-10,000; Mr. Taft-12,500; Mr. Thomas-62,516; and all directors and executive officers as a group-1,478,814. Does not include units representing shares of Cinergy common stock credited under Cinergy's Retirement Plan for Directors, Directors' Equity Compensation Plan and/or Directors' Deferred Compensation Plan in the following amounts: Mr. Armstrong-14,579; Mr. Baker-18,580; Mr. Browning-19,625; Mr. Cox-4,509; Mr. Hillenbrand-13,365; Mr. Juilfs-11,969; Dr. Perelman-24,543; Mr. Petry-9,555; Ms. Schapiro-1,172; Mr. Schiff-9,251; Dr. Sharp-3,930; Mr. Taft-9,971; and Mr. Waddell-8,451. (3) 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 17-49 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 29, 2000. The beneficial ownership of the outstanding shares of Cinergy's common stock held by each director and named executive officer as of February 29, 2000, is set forth in the following table. AMOUNT AND NATURE NAME OF BENEFICIAL OWNER (1) OF BENEFICIAL OWNERSHIP (2) - ---------------------------- --------------------------- Michael J. Cyrus 108,059 shares William J. Grealis 233,373 shares Jackson H. Randolph 267,726 shares James E. Rogers 736,553 shares Larry E. Thomas 253,982 shares James L. Turner 10,880 shares All directors and executive officers as a group 2,112,721 shares (2) (representing 1.33% of the class) - ------------------ (1) No individual listed beneficially owned more than 0.464% 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-113,937; Mr. Randolph-141,258; Mr. Rogers-461,029; Mr. Thomas-100,916; Mr. Turner-2,300; and all directors and executive officers as a group-1,012,169. PSI (INCLUDING SUBSIDIARIES) PSI's (and its sole subsidiary) director-nominees and named executive officers (as identified on pages 17-49 of this U5S) did not beneficially own any shares of any series of the class of PSI's cumulative preferred stock as of February 29, 2000. 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 February 29, 2000, is set forth in the following table. AMOUNT AND NATURE NAME OF BENEFICIAL OWNER (1) OF BENEFICIAL OWNERSHIP (2) - ---------------------------- --------------------------- James K. Baker 26,105 shares Michael G. Browning 111,920 shares Michael J. Cyrus 108,059 shares William J. Grealis 233,376 shares John A. Hillenbrand II 76,264 shares Jackson H. Randolph 267,726 shares James E. Rogers 736,553 shares Larry E. Thomas 253,982 shares All directors and executive officers as a group 2,224,908 shares (2) (representing 1.40% of the class) - ------------------- (1) No individual listed beneficially owned more than 0.464% 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-12,500; Mr. Browning-25,287; Mr. Hillenbrand-12,500; Mr. Randolph-141,258; Mr. Rogers-461,029; Mr. Thomas-100,916; and all directors and executive officers as a group-1,010,073. Does not include units representing shares of Cinergy common stock credited under Cinergy's Retirement plan for Directors, Directors' Equity Compensation Plan and/or Directors' Deferred Compensation Plan in the following amounts: Mr. Baker-18,580; Mr. Browning-19,625; and Mr. Hillenbrand-13,365. EX-99 62 0062.txt SUBSIDIARY LISTING Exhibit H 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 or Incorporation Name of Company Cinergy Corp. Delaware The Cincinnati Gas &Electric Company Delaware The Union Light, Heat and Power Company Kentucky Tri-State Improvement Company Indiana Lawrenceburg Gas Company Indiana The West Harrison Gas and Electric Company Indiana Miami Power Corporation Indiana KO Transmission Company Kentucky PSI Energy, Inc. Indiana South Construction Company, Inc. Indiana Cinergy Services, Inc. Delaware Cinergy Investments, Inc. Delaware Cinergy-Cadence, Inc. Indiana Cadence Network LLC Delaware Cinergy Capital & Trading, Inc. Indiana CinCap MVC OpCo, LLC Delaware CinCap IV, LLC Delaware CinCap V, LLC Delaware CinCap VI, LLC Delaware CinCap VIII, LLC Delaware VMC Generating Company Delaware CinCap VII, LLC Delaware Duke Energy Madison, LLC Delaware Duke Energy Vermillion, LLC Delaware Westwood Operating Company, LLC Delaware CinPower I, LLC Delaware Cinergy Marketing & Trading, LLC Delaware Cinergy Communications, Inc. Delaware Cinergy Telecommunications Networks Holdings, Inc. Delaware Lattice Communications, LLC Delaware Cinergy Engineering, Inc. Ohio Cinergy-Centrus, Inc. Ohio Centrus, LLP Indiana Cinergy-Centrus Communications, Inc. Delaware Cinergy Resources, Inc. Delaware Cinergy Solutions, Inc. Delaware 1388368 Ontario Inc. Ontario 3036243 Nova Scotia Company Ontario Cinergy Solutions Limited Partnership Ontario Cinergy Business Solutions, Inc. Delaware Rose Technology Group Limited Ontario Cinergy Customer Care, Inc. Delaware Cinergy EPCOM, LLC Delaware Cinergy EPCOM College Park, LLC Delaware Cinergy Solutions of Golden, Inc. Delaware Cinergy Solutions of Tuscola, Inc. Delaware Energy Equipment Leasing LLC Delaware Trigen-Cinergy Solutions LLC Delaware Trigen-Cinergy Solutions of Ashtabula, LLC Delaware Trigen-Cinergy Solutions of Baltimore LLC Delaware Trigen-Cinergy Solutions of Boca Raton, LLC Delaware Trigen-Cinergy Solutions of Cincinnati LLC Ohio Trigen-Cinergy Solutions of College Park, LLC Delaware Trigen-Cinergy Solutions of Danville, LLC Delaware Trigen-Cinergy Solutions of Illinois L.L.C. Delaware Trigen-Cinergy Solutions of Lansing LLC Delaware Trigen-Cinergy Solutions of Orlando LLC Delaware Trigen-Cinergy Solutions of Owings Mills LLC Delaware Trigen-Cinergy Solutions of Owings Mills Energy Delaware Equipment Leasing, LLC Trigen-Cinergy Solutions of Rochester LLC Delaware Trigen-Cinergy Solutions of Silver Grove LLC Delaware Trigen-Cinergy Solutions of St. Paul LLC Delaware St. Paul Cogeneration LLC Minnesota Trigen-Cinergy Solutions of Tuscola, LLC Delaware Cinergy Supply Network, Inc. Delaware Reliant Services, LLC Indiana Cinergy Technology, Inc. Indiana Enertech Associates, Inc. Ohio Cinergy Global Resources, Inc. Delaware Cinergy Global Power, Inc Delaware Cinergy Global Ely, Inc. England EPR Ely Power Limited England EPR Ely Limited England Ely Power Limited England Anglian Straw Limited England Cinergy Global Foote Creek, Inc. Delaware Foote Creek III, LLC Delaware Cinergy Global Foote Creek II, Inc. Delaware Foote Creek II, LLC Delaware Cinergy Global Power Services Limited England Cinergy Global Power Limited England MPI International Limited England Cinergy Global Power (UK) Limited England Cinergy Global Trading Limited England Cinergy Global San Gorgonio, Inc. Delaware San Gorgonio Westwinds II, LLC California Cinergy Global Holdings, Inc. Delaware Cinergy Holdings B.V. The Netherlands Cinergy Zambia B.V. The Netherlands Copperbelt Energy Corporation PLC Republic of Zambia Cinergy Turbines B.V. The Netherlands EOS PAX I S.L. Spain EOS PAX IIa S.L. Spain Cinergy Hydro B.V. The Netherlands Construcciones y Representaciones Industriales S.A. Spain Cinergy Global Power Iberia, S.A. Spain Escambeo, S.L. Spain Parque Eolico de Ascoy, S.A. Spain Ventoabrego, S.L. Spain Vendresse Limited Isle of Man Cinergy 1 B.V. The Netherlands Startekor Investeeringute OU Estonia Aktsiaselts Narva Elektrivork 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 Cinergetika U/L a.s. Czech Republic Energetika Chropyne a.s. Czech Republic Teplarna Otrokovice a.s. Czech Republic Cinergy 2 B.V. The Netherlands Desarrollo Eolico del Ebro S.A. Spain Northeolic Pico Gallo, S.L. Spain Desarrollos Eolico El Aguila, S.A. Spain Sinergia Aragonesa, S.L. Spain Cinergy Global Baghabari I B.V. The Netherlands Baghabari Power Company Limited The Netherlands Cinergy Global Baghabari II B.V. The Netherlands Baghabari Power Company Limited The Netherlands Cinergy Global 3 B.V. The Netherlands Cinergy Global 4 B.V. The Netherlands Cinergy Global (Cayman) Holdings, Inc. Cayman Islands Cinergy Global Hydrocarbons Pakistan Cayman Islands Cinergy Global Tsavo Power 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 Powermid No. 1 England Cinergy UK, Inc. Delaware PSI Argentina, Inc. Indiana Costanera Power Corp. Indiana PSI Energy Argentina, Inc. Indiana EX-27.0 63 0063.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 6,417,472 358,853 1,203,691 1,055,012 581,920 9,616,948 1,589 1,597,554 1,054,578 2,653,721 0 92,597 2,989,242 550,194 0 0 31,000 0 0 0 3,300,194 9,616,948 5,937,888 208,671 5,244,665 5,453,336 484,552 159,324 643,876 234,778 409,098 5,457 403,641 (285,925) 205,798 342,618 2.54 2.53
EX-27.1 64 0064.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 0 2,797,315 290,078 0 20,492 3,107,885 1,589 1,597,554 1,054,578 2,653,721 0 0 399,667 0 0 0 0 0 0 0 54,497 3,107,885 0 (11,520) 7,360 (4,160) 4,160 443,293 447,453 43,812 403,641 0 403,641 (285,925) 22,813 587,081 0.00 0.00
EX-27.2 65 0065.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 0 0 51,595 0 45,273 96,868 0 156 (1,984) (1,828) 0 0 0 0 0 0 0 0 0 0 98,696 96,868 416,342 514 415,902 416,416 (74) 443 369 369 0 0 0 0 0 1,522 0.00 0.00
EX-27.3 66 0066.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 3,762,826 0 500,447 536,224 117,121 4,916,618 762,136 562,851 334,178 1,659,165 0 20,686 1,205,916 234,702 0 0 0 0 0 0 1,796,149 4,916,618 2,550,874 143,676 2,071,405 2,215,081 335,793 (2,480) 333,313 99,737 233,576 856 232,720 (250,100) 95,611 483,366 0.00 0.00
EX-27.4 67 0067.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 2,654,646 0 569,010 518,788 92,392 3,834,836 539 411,198 643,960 1,055,697 0 71,911 1,211,552 232,597 0 0 31,000 0 0 0 1,232,079 3,834,836 2,135,706 69,215 1,863,682 1,932,897 202,809 655 203,464 86,265 117,199 4,601 112,598 (35,900) 77,090 46,833 0.00 0.00
EX-27.5 68 0068.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 0 282,061 178,743 0 104,090 564,894 0 628,721 (565,886) 62,835 0 0 0 20,000 0 0 0 0 0 0 482,059 564,894 1,272,999 (25,118) 1,309,413 1,284,295 (11,296) (3,944) (15,240) 4,458 (19,698) 0 (19,698) 0 0 282,587 0.00 0.00
EX-27.6 69 0069.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 0 76,792 60,621 0 202,552 339,965 0 143,369 (120,359) 23,010 0 0 172,107 62,895 0 0 0 0 0 0 81,953 339,965 61,430 30,736 76,069 106,805 (45,375) 168,468 123,093 25,628 97,465 0 97,465 (217,308) 10,284 (497,053) 0.00 0.00
EX-27.7 70 0070.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 3,452,799 180,428 495,926 525,585 68,156 4,722,894 762,136 562,851 334,178 1,659,165 0 20,686 1,130,159 234,702 0 0 0 0 0 0 1,678,182 4,722,894 2,419,927 132,142 1,973,330 2,105,472 314,455 13,643 328,098 94,522 233,576 856 232,720 (250,100) 90,301 465,203 0.00 0.00
EX-27.8 71 0071.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 296,551 0 30,075 10,639 5,000 342,265 8,780 20,142 103,128 132,050 0 0 74,557 0 0 0 0 0 0 0 135,658 342,265 280,962 10,184 250,823 261,007 19,955 (1,567) 18,388 6,114 12,274 0 12,274 (9,659) 5,192 32,537 0.00 0.00
EX-27.9 72 0072.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 12,063 0 1,343 0 45 13,451 538 80 6,793 7,411 0 0 1,200 0 0 0 0 0 0 0 4,840 13,451 6,537 314 5,562 5,876 661 12 673 124 549 0 549 (398) 118 1,704 0.00 0.00
EX-27.10 73 0073.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 354 0 190 0 (8) 536 20 16 344 380 0 0 0 0 0 0 0 0 0 0 156 536 563 27 490 517 46 0 46 0 46 0 46 (50) 0 65 0.00 0.00
EX-27.11 74 0074.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 4 0 11 0 1 16 1 4 6 11 0 0 0 0 0 0 0 0 0 0 5 16 22 6 4 10 12 0 12 0 12 0 12 (15) 0 12 0.00 0.00
EX-27.12 75 0075.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 0 0 796 0 43,605 44,401 25 0 1,774 1,799 0 0 38,143 0 0 0 0 0 0 0 4,459 44,401 0 298 205 503 (503) 1,979 1,476 623 853 0 853 0 0 1,116 0.00 0.00
EX-27.13 76 0076.txt CINERGY 1999 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-31-1999 JAN-01-1999 DEC-31-1999 PER-BOOK 1,055 0 93 0 322 1,470 0 531 53 584 0 0 0 0 0 0 0 0 0 0 886 1,470 1,395 59 1,245 1,304 91 0 91 0 91 0 91 (50) 0 50 0.00 0.00
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