-----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, J4iYLThLfwmJcDmQspfdwE1QSu77kICbNvq62RKt95BOzy/9ODOFMyDwckLYN+EB FxeO1cyhqD8gMi59tnFiJg== 0000899652-96-000101.txt : 19960502 0000899652-96-000101.hdr.sgml : 19960502 ACCESSION NUMBER: 0000899652-96-000101 CONFORMED SUBMISSION TYPE: U5S PUBLIC DOCUMENT COUNT: 94 CONFORMED PERIOD OF REPORT: 19951231 FILED AS OF DATE: 19960501 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CINERGY CORP CENTRAL INDEX KEY: 0000899652 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 311385023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U5S SEC ACT: 1935 Act SEC FILE NUMBER: 001-11377 FILM NUMBER: 96554439 BUSINESS ADDRESS: STREET 1: 139 E FOURTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5133812000 MAIL ADDRESS: STREET 1: 139 E FOURTH STREET CITY: CINCINATI STATE: OH ZIP: 45202 U5S 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM U5S ANNUAL REPORT For the Year Ended December 31, 1995 Filed pursuant to the Public Utility Holding Company Act of 1935 by Cinergy Corp. 139 East Fourth Street Cincinnati, Ohio 45202 (Name and address of each registered holding company in the system) TABLE OF CONTENTS Item No. 1 SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995 2 ACQUISITIONS OR SALES OF UTILITY ASSETS 3 ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES 4 ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES 5 INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES 6 OFFICERS AND DIRECTORS Part I. Name, prinicpal business address, and positions held as of December 31, 1995 Part II. Financial connections as of December 31, 1995 Part III. Compensation and other related information 7 CONTRIBUTIONS AND PUBLIC RELATIONS 8 SERVICE, SALES, AND CONSTRUCTION CONTRACTS Part I. Intercompany sales and service Part II. Contracts to purchase services or goods between any system company and any affiliate Part III. Employment of any person by any system company for the performance on a continuing basis of management services 9 WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES 10 FINANCIAL STATEMENTS AND EXHIBITS Index to Financial Statements Exhibits SIGNATURE ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995
Number of Common % of Issuer's Owner's Shares Voting Book Book Name of Company Owned Power Value Value (Indentation indicates subsidiary relationship) (dollars in thousands) Cinergy Corp. (Cinergy) The Cincinnati Gas & Electric Company (CG&E) 89,663,086 100 $1,528,463 $1,528,463 The Union Light, Heat and Power Company (ULH&P) 585,333 100 110,482 110,482 Tri-State Improvement Company (Tri-State) 1,000 100 26,928 79 Lawrenceburg Gas Company (Lawrenceburg) 10,768 100 5,645 5,645 The West Harrison Gas and Electric Company (West Harrison) 2,000 100 291 291 Miami Power Corporation (Miami) 1,000 100 16 16 KO Transmission Company* (KO Transmission) 10 100 - - PSI Energy, Inc. (PSI)(1) 53,913,701 100 1,029,067 1,029,067 PSI Energy Argentina, Inc. (PSI Energy Argentina) 100 100 10,705 10,705 South Construction Company, Inc. (South Construction) 10 100 - - Cinergy Investments, Inc. (Investments)(2)(3) 100 100 11,447 11,447 CGE ECK, Inc. (CGE ECK) 10 100 (475) (475) Cinergy Resources, Inc. (Cinergy Resources)(4) 10 100 (687) (687) Cinergy Technology, Inc. (Technology)(5) 100 100 - - PSI Argentina, Inc. (Argentina)(6)(7) 100 100 16,810 16,810 Costanera Power Corp. (Costanera)(7) 100 100 - - PSI International, Inc.* 100 100 - - PSI Power Resource Development, Inc.* 100 100 - - PSI Power Resource Operations, Inc.* 100 100 - - PSI Recycling, Inc. (Recycling)(2) 100 100 1,870 1,870 PSI Sunnyside, Inc.* 100 100 - - PSI T&D International, Inc.* 100 100 - - PSI Yacyreta, Inc.* 100 100 - - Power Equipment Supply Co. (PESCO)(8) 100 100 4,666 4,666 Power International, Inc. (Power International)(3) 100 100 (8,105) (8,105) Beheer-En Belegginsmaatschappij Bruwabel B.V. (Bruwabel)(3) 321 100 (1,266) (1,266) Power Development s.r.o.(3)(9) N/A 100 (353) (353) Power International s.r.o.(3)(10) N/A 100 (948) (948) Wholesale Power Services, Inc. (Wholesale Power)(11) 100 100 (485) (485) Cinergy Services, Inc. (Services) 50 100 (213) (213) *Inactive at December 31, 1995. - -Amounts are less than $1,000. Notes are on the next page. (1) PSI also has voting cumulative preferred stock outstanding at December 31, 1995, as follows: Class Shares outstanding Vote per share Par value $100 799,483 1 vote Par value $25 4,317,925 1/4 vote (2) Investments is actively pursuing the sale of Recycling. (3) In 1994, Enertech Associates International, Inc. was renamed Power International. Power International offers utility management consulting services to non-associates and pursues investment opportunities in energy-related areas. The activities of Power International were reduced in 1995, and Investments is exploring opportunities to sell Bruwabel (a Dutch corporation) and its subsidiaries. (4) In 1995, CG&E Resource Marketing, Inc. divested its one-third general partnership interest in U.S. Energy Partners, a gas marketing partnership, and was renamed Cinergy Resources. Cinergy Resources will continue in the business of natural gas brokering and marketing. (5) In connection with the reduction in activities in 1995 of Power International (including the potential sale of Bruwabel and its subsidiaries), PSI Environmental Corp. was renamed Technology, with a view of offering utility management consulting services to non-associates and pursuing investment opportunities in energy-related areas. (6) In 1995, Argentina sold its interest in E P EDEGEL, Inc. In addition, as a result of Costanera selling substantially all of its assets (see Note 7), Argentina, like Costanera, notified the Federal Energy Regulatory Commission (FERC) in 1996 that it no longer seeks to maintain its status as an exempt wholesale generator (EWG). (For additional information, see "Item 9. Wholesale Generators and Foreign Utility Companies.") (7) In 1995, Costanera, a wholly-owned subsidiary of Argentina, sold its equity interest in an Argentine power plant, constituting substantially all of its assets. As a result, Costanera notified the FERC in 1996 that it no longer seeks to maintain EWG status. (For additional information, see "Item 9. Wholesale Generators and Foreign Utility Companies.") (8) In late 1995, PESCO sold the assets of its North American Machinery Division to a non- associate. (9) Power Development s.r.o. is a Czech Republic limited liability corporation. (10)Power International s.r.o. is a Czech Republic limited liability corporation. (11)As part of its business, Wholesale Power markets and maintains the services of an "electronic bulletin board" for power brokering and sales in the bulk power market. The use of the electronic bulletin board was limited in 1995 and is being phased out in 1996. Additionally, in 1995, Wholesale Power received authorization from the FERC to sell electricity to non- associates at market-based rates.
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS None ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE, OR ASSUMPTION OF SYSTEM SECURITIES
Principal Amount Name of Company or Stated Value Name of Issuer Issuing, Selling, Pledged, and Pledging, Guaranteeing, Issued Guaranteed, Date of Commission Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization (in thousands) CG&E Ohio Air Quality Development Revenue Refunding Bonds, due September 1, 2030 CG&E $84,000 09/13/95 $83,470 Rule 52 (See certificate of notification on Form U-6B-2 filed on Oct. 3, 1995.)
ITEM 4. ACQUISITION, REDEMPTION, OR RETIREMENT OF SYSTEM SECURITIES
Name of Company Acquiring, Principal Extinguished (E) Commission Redeeming, or Number of Amount or Held for Authorization Name of Issuer Retiring Shares Retired Consideration Further or and Title of Issue Securities Redeemed (thousands) (thousands) Disposition (D) Exemption CG&E First Mortgage Bonds 9.70% Series CG&E $59,000 $59,000 E Rule 42 10 1/8% Series CG&E 55,000 55,000 E Rule 42 9.70% Series CG&E 41,000 41,713 E Rule 42 10 1/8% Series CG&E 45,000 45,749 E Rule 42 10.20% Series CG&E 13,500 13,780 E Rule 42 10 1/8% Series (Pollution Control) CG&E 84,000 86,100 E Rule 42 Cumulative Preferred Stock Par value $100 per share 7.44% Series CG&E 400,000 40,000 40,400 E Rule 42 9.15% Series CG&E 500,000 50,000 53,050 E Rule 42 ULH&P First Mortgage Bonds 10.25% Series ULH&P 15,000 15,734 E Rule 42 9.70% Series ULH&P 20,000 21,302 E Rule 42 PSI First Mortgage Bonds Series YY, 5.60% PSI 55 55 E Rule 42 Pollution Control Notes 5 3/4% Series PSI 400 400 E Rule 42 Medium-term Notes Series B, 5.75% PSI 60,000 60,000 E Rule 42 Cumulative Preferred Stock Par value $100 per share 3 1/2% Series PSI 329 32 15 E Rule 42
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
Aggregate Amount of Investments Number of 1. Name of in Persons (Entities) Operating in Persons Description of Company Retail Service Area of Owner (Entities) Persons (Entities)(1) (in thousands) CG&E $ 84 3 Limited partnerships which own, rehabilitate, and maintain apartment buildings for low income housing CG&E 1,030 2 Limited partnerships which invest in small and minority- or female-owned businesses CG&E 15 1 Community improvement fund ULH&P 1 2 Economic development corp. PSI 3,850 3 Limited partnerships which make long-term investments in Indiana and other midwestern businesses PSI 525 1 Limited partnership which invests in start-up companies PSI 4 1 Oil company PSI 5 1 Economic development corp. PSI 8 1 Retail department store PSI 38 1 Retail department store PSI 178 1 Manufacturer of construction materials PSI 1 1 Economic development corp. PSI 120 1 Manufacturer of construction materials PSI 6 1 Drug store/pharmacy PSI 4 1 Owns and operates hotels PSI 3 1 Economic development corp. PSI 1 1 Economic development corp. PSI 1 6(2) Economic development corp., country clubs, jeweler, barge company, and bus company. (1) All of PSI's investments in securities, except for its partnership interests, represent bankruptcy distributions applicable to obligations of customers incurred in the ordinary course of business. (2) Represents small ownership interests in six unrelated companies.
2. Securities not included in Item 5, No. 1: % of Owner's Name of Name of Description Number of Voting Nature of Book Value Company Issuer of Security Shares Power Business (in thousands CG&E Ohio Valley Common stock 9,000 9% Public utility $ 900 Electric Corp. PSI Circle Limited Center Mall partnership N/A 4.2% Shopping mall 3,015 PSI EMC Technologies, Refurbish and Inc. Preferred stock 3,483 (2) manufacture large 4 electrical equipment CGE ECK ECK s.r.o. Limited liability Czech Republic corporation N/A 3% generating facility -(1) (1) This investment was written off in 1994. CGE ECK intends to dispose of this interest. (2) Not available.
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 Part I
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED* Cinergy Services CG&E ULH&P Tri-State Lawrenceburg Neil A. Armstrong (a) D James K. Baker (c) D Michael G. Browning (d) D Clement L. Buenger (e) D Phillip R. Cox (f) D Kenneth M. Duberstein (g) D John A. Hillenbrand II (h) D George C. Juilfs (i) D Melvin Perelman, Ph.D. (j) D Thomas E. Petry (k) D Jackson H. Randolph (a) D,CM D,CM D,CM D,CM D,CM D,CM James E. Rogers (a) D,VCM,P,CEO D,VCM,P,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO John J. Schiff, Jr. (l) D Philip R. Sharp, Ph.D. (m) D Van P. Smith (n) D Dudley S. Taft (o) D Oliver W. Waddell (p) D Terry E. Bruck (a) GVP D,GVP GVP D,GVP D Cheryl M. Foley (a) VP,GC,S D,VP,GC,S VP,GC,S D,VP,GC,S VP,GC,S VP,GC,S J. Wayne Leonard (a) GVP,CFO D,GVP,CFO GVP,CFO D,GVP,CFO D,GVP,CFO GVP,CFO Stephen G. Salay (a) GVP D,GVP GVP D Larry E. Thomas (a) GVP,CTO D,GVP,CTO GVP,CTO GVP,CTO GVP,CTO GVP,CTO William J. Grealis (a) VP VP D,P D,P D,P P John M. Mutz (b) VP VP George H. Stinson (a) VP VP VP VP VP VP William L. Sheafer (a) T T T T T T Bernard F. Roberts (a) AT AT AT AT AT AT Charles J. Winger (a) C C C C C C John P. Steffen (a) AC AC AC AC AC AC John E. Polley (b) AS AS AS AS AS AS Jerome A. Vennemann (a) AS AS AS AS AS AS Vincent E. Andres (a) D John H. Hoffman (a) D Ronald J. Brothers (b) Barry E. Pulskamp (a) John J. Roebel (a) *Address codes and position descriptions are listed on the following page.
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED* West KO PSI Energy South Harrison Miami Transmission PSI Argentina Construction Neil A. Armstrong (a) James K. Baker (c) D Michael G. Browning (d) D Clement L. Buenger (e) Phillip R. Cox (f) Kenneth M. Duberstein (g) John A. Hillenbrand II (h) D George C. Juilfs (i) Melvin Perelman, Ph.D. (j) Thomas E. Petry (k) Jackson H. Randolph (a) D,CM D,CM D,CM D,CM D D James E. Rogers (a) D,VCM,CEO D,VCM,CEO D,VCM,CEO D,VCM,CEO D D John J. Schiff, Jr. (l) Philip R. Sharp, Ph.D. (m) Van P. Smith (n) D Dudley S. Taft (o) Oliver W. Waddell (p) Terry E. Bruck (a) GVP GVP GVP Cheryl M. Foley (a) VP,GC,S VP,GC,S D,VP,GC,S VP,GC,S D,S D,S J. Wayne Leonard (a) GVP,CFO GVP,CFO GVP,CFO GVP,CFO VP VP Stephen G. Salay (a) GVP Larry E. Thomas (a) GVP,CTO GVP,CTO GVP,CTO GVP,CTO William J. Grealis (a) P P D,P D,P John M. Mutz (b) D,P D,P George H. Stinson (a) VP VP VP VP William L. Sheafer (a) T T T T T T Bernard F. Roberts (a) AT AT AT AT Charles J. Winger (a) C C C C C C John P. Steffen (a) AC AC AC AC John E. Polley (b) AS AS AS AS Jerome A. Vennemann (a) AS AS AS AS Vincent E. Andres (a) D D John H. Hoffman (a) D D Ronald J. Brothers (b) AS Barry E. Pulskamp (a) John J. Roebel (a) *Address codes and position descriptions are listed on the following page.
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED* CGE Cinergy Investments ECK Resources Argentina Costanera Technology Neil A. Armstrong (a) James K. Baker (c) Michael G. Browning (d) Clement L. Buenger (e) Phillip R. Cox (f) Kenneth M. Duberstein (g) John A. Hillenbrand II (h) George C. Juilfs (i) Melvin Perelman, Ph.D. (j) Thomas E. Petry (k) Jackson H. Randolph (a) D,CM D D D D D James E. Rogers (a) D,VCM,CEO D D D D D John J. Schiff, Jr. (l) Philip R. Sharp, Ph.D. (m) Van P. Smith (n) Dudley S. Taft (o) Oliver W. Waddell (p) Terry E. Bruck (a) Cheryl M. Foley (a) D,VP,GC,S D,S D,S D,S D,S D,S J. Wayne Leonard (a) D,VP,CFO VP VP VP VP VP Stephen G. Salay (a) D Larry E. Thomas (a) William J. Grealis (a) D,P D,P D,P D,P D,P D,P John M. Mutz (b) D George H. Stinson (a) William L. Sheafer (a) T T T T T T Bernard F. Roberts (a) Charles J. Winger (a) C C C C C C John P. Steffen (a) John E. Polley (b) Jerome A. Vennemann (a) Vincent E. Andres (a) John H. Hoffman (a) Ronald J. Brothers (b) Barry E. Pulskamp (a) John J. Roebel (a) *Address codes and position descriptions are listed on the following page.
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED* PSI Power PSI Power PSI Resource Resource PSI PSI T&D International Development Operations Recycling Sunnyside International Neil A. Armstrong (a) James K. Baker (c) Michael G. Browning (d) Clement L. Buenger (e) Phillip R. Cox (f) Kenneth M. Duberstein (g) John A. Hillenbrand II (h) George C. Juilfs (i) Melvin Perelman, Ph.D. (j) Thomas E. Petry (k) Jackson H. Randolph (a) D D D D D D James E. Rogers (a) D D D D D D John J. Schiff, Jr. (l) Philip R. Sharp, Ph.D. (m) Van P. Smith (n) Dudley S. Taft (o) Oliver W. Waddell (p) Terry E. Bruck (a) Cheryl M. Foley (a) D,S D,S D,S D,S D,S D,S J. Wayne Leonard (a) VP VP VP VP VP VP Stephen G. Salay (a) Larry E. Thomas (a) William J. Grealis (a) D,P D,P D,P D,P D,P D,P John M. Mutz (b) George H. Stinson (a) William L. Sheafer (a) T T T T T T Bernard F. Roberts (a) Charles J. Winger (a) C C C C C C John P. Steffen (a) John E. Polley (b) Jerome A. Vennemann (a) Vincent E. Andres (a) John H. Hoffman (a) Ronald J. Brothers (b) Barry E. Pulskamp (a) John J. Roebel (a) *Address codes and position descriptions are listed on the following page.
NAME (ADDRESS)* NAME OF SYSTEM COMPANY WITH WHICH CONNECTED* PSI Power(1) Wholesale Yacyreta PESCO International Power Neil A. Armstrong (a) James K. Baker (c) Michael G. Browning (d) Clement L. Buenger (e) Phillip R. Cox (f) Kenneth M. Duberstein (g) John A. Hillenbrand II (h) George C. Juilfs (i) Melvin Perelman, Ph.D. (j) Thomas E. Petry (k) Jackson H. Randolph (a) D D D D James E. Rogers (a) D D D D John J. Schiff, Jr. (l) Philip R. Sharp, Ph.D. (m) Van P. Smith (n) Dudley S. Taft (o) Oliver W. Waddell (p) Terry E. Bruck (a) Cheryl M. Foley (a) D,S D,S S D,VP,S J. Wayne Leonard (a) VP VP VP D,P Stephen G. Salay (a) Larry E. Thomas (a) William J. Grealis (a) D,P D,P P John M. Mutz (b) George H. Stinson (a) D William L. Sheafer (a) T T T T Bernard F. Roberts (a) Charles J. Winger (a) C C C C John P. Steffen (a) John E. Polley (b) Jerome A. Vennemann (a) Vincent E. Andres (a) John H. Hoffman (a) Ronald J. Brothers (b) Barry E. Pulskamp (a) D John J. Roebel (a) D *Address codes and position descriptions are listed on the following page.
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued) Part I Address Codes: (a) 139 East Fourth Street, Cincinnati, Ohio 45202 (b) 1000 East Main Street, Plainfield, Indiana 46168 (c) One Noblitt Plaza, Columbus, Indiana 47202 (d) 251 North Illinois, Suite 200, Indianapolis, Indiana 46204 (e) 38 Fountain Square Plaza, Cincinnati, Ohio 45263 (f) 105 East Fourth Street, Suite 600, Cincinnati, Ohio 45202 (g) 2100 Pennsylvania Avenue, N.W., Suite 350, Washington, D.C. 20037 (h) 324 Mitchell Avenue, Batesville, Indiana 47006 (i) One Riverfront Place, Newport, Kentucky 41071 (j) 8751 Jaffa Court, E. Drive, Apt. 16, Indianapolis, Indiana 46260 (k) 580 Walnut Street, P.O. Box 779, Cincinnati, Ohio 45201 (l) P.O. Box 145496, Cincinnati, Ohio 45250-5496 (m) 79 JFK Street, Cambridge, Massachussetts 02138 (n) 123 East Adams Street, Muncie, Indiana 47305 (o) 312 Walnut Street, Suite 3550, Cincinnati, Ohio 45202 (p) P.O. Box 1038, 425 Walnut Street, Cincinnati, Ohio 45201-1038 Positions are indicated by the following symbols: AC Assistant Comptroller AS Assistant Secretary AT Assistant Treasurer C Comptroller CEO Chief Executive Officer CFO Chief Financial Officer CM Chairman of the Board CTO Chief Transformation Officer D Director GC General Counsel GVP Group Vice President P President S Secretary T Treasurer VCM Vice Chairman VP Vice President ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued) Part II
Name of Officer Name and Location Position Held in Applicable or Director of Financial Institution Financial Institution Exemption Rule James K. Baker First Chicago NBD Corp. Director 70(b),(d) Chicago, Illinois Clement L. Buenger Fifth Third Bancorp Director 70(a) Cincinnati, Ohio The Fifth Third Bank Director 70(a) Cincinnati, Ohio Phillip R. Cox Cincinnati Office of the Director 70(b) Federal Reserve Bank of Cleveland Cleveland, Ohio PNC Bank, Ohio, N.A. Director 70(a) Cincinnati, Ohio John A. Hillenbrand II National City Bank Director 70(a) Indianapolis, Indiana John M. Mutz National City Bank Director 70(c),(f) Indianapolis, Indiana Thomas E. Petry Star Banc Corporation Director 70(a) Cincinnati, Ohio Star Bank, N.A. Director 70(a) Cincinnati, Ohio Jackson H. Randolph PNC Bank Corp. Director 70(b),(c), Pittsburgh, Pennsylvania (d),(e) PNC Bank, Ohio, N.A. Director 70(a),(e) Cincinnati, Ohio James E. Rogers Fifth Third Bancorp Director 70(a),(c),(e) Cincinnati, Ohio The Fifth Third Bank Director 70(a),(e) Cincinnati, Ohio John J. Schiff, Jr. Fifth Third Bancorp Director 70(a),(e) Cincinnati, Ohio The Fifth Third Bank Director 70(a),(e) Cincinnati, Ohio Dudley S. Taft Fifth Third Bancorp Director 70(a) Cincinnati, Ohio The Fifth Third Bank Director 70(a) Cincinnati, Ohio Oliver W. Waddell Star Banc Corporation Director 70(a) Cincinnati, Ohio Star Bank, N.A. Director 70(a) Cincinnati, Ohio
ITEM 6. OFFICERS AND DIRECTORS AS OF DECEMBER 31, 1995 (Continued) Part III (a) and (e) Directors' and Executive Officers' Compensation and Participation in Bonus and Profit-Sharing Arrangements and Other Benefits For information concerning compensation of directors and executive officers and their participation in bonus and profit-sharing and other benefits, see the disclosures made in the: 1996 Cinergy Proxy Statement (Proxy Statement*), page 9 and pages 12 through 23, for Cinergy and Investments and subsidiaries. 1995 Annual Report on Form 10-K (Form 10-K), pages 142 through 156, for CG&E and subsidiaries. 1996 PSI Information Statement (Information Statement*), pages 6 through 17 (as supplemented in Exhibit F-9), for PSI and subsidiaries. (b) Directors' and Executive Officers' Interests in Securities of System Companies For information concerning interests in system companies, see the disclosures (as supplemented in Exhibit F-9) made in the: Proxy Statement, page 11, for Cinergy and Investments and subsidiaries. Form 10-K, page 157, for CG&E and subsidiaries. Information Statement, pages 2 and 3, for PSI and subsidiaries. (c) Directors' and Executive Officers' Contracts and Transactions with System Companies For information concerning contracts and transactions with system companies, see the disclosures made in the: Proxy Statement, pages 20 through 23, for Cinergy and Investments and subsidiaries. Form 10-K, pages 151 through 155, for CG&E and subsidiaries. Information Statement, pages 14 through 17, for PSI and subsidiaries. (d) Indebtedness of Directors or Executive Officers to System Companies None (f) Directors' and Executive Officers' Rights to Indemnity The state laws under which each of Cinergy and its domestic direct and indirect subsidiaries is incorporated provide broadly for indemnification of directors and officers against claims and liabilities against them in their capacities as such. Each of such company's articles of incorporation, charters, by-laws, or regulations identifying these rights to indemnity are incorporated by reference or contained herein as exhibits. *The Proxy Statement and Information Statement are hereby incorporated by reference (see File Nos. 1-11377 and 1-3543, respectively). ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (1) None(1) (1) Cinergy and PSI have established separate segregated funds or political action committees and have incurred certain costs in the administration of these committees in accordance with the provisions of the Federal Election Campaign Act.
(2) Name of Company Name of Recipient or Beneficiary Purpose Account Charged Amount Cinergy Democratic Leadership Council Dues and Fees (1) $20,000 Less than $10,000 - 1 beneficiary Support (2) 790 $20,790 CG&E American Coal Ash Association Dues and Fees (2) $62,622 American Gas Association Dues and Fees (1), (2) 64,106 Edison Electric Institute Dues and Fees (2), (3) 65,982 Support (2) 40,507 Global Climate Coalition Dues and Fees (3) 30,000 Greater Cincinnati Chamber of Commerce Dues and Fees (1), (2) 79,768 Support (2) 27,156 Greater Cincinnati Council on World Affairs Dues and Fees (2) 5,242 Support (2), (3) 7,482 Institute on Advanced Manufacturing Science, Inc. Dues and Fees (2), (3) 325,337 Institute of Gas Technology Dues and Fees (2) 21,200 Materials (2) 11,828 Midwest Gas Association Dues and Fees (2), (3) 13,634 Ohio Chamber of Commerce Dues and Fees (2) 15,550 Ohio Electric Utility Institute Dues and Fees (2) 81,508 U.S. Chamber of Commerce Dues and Fees (2) 20,000 Less than $10,000 - 32 beneficiaries Dues and Fees (2), (3) 46,791 Less than $10,000 - 1 beneficiary Support (2) 500 $919,213 ULH&P American Gas Association Dues and Fees (1), (2) $13,130 Less than $10,000 - 14 beneficiaries Dues and Fees (1), (2), & (3) 18,188 Less than $10,000 - 3 beneficiaries Support (2) 2,256 Less than $10,000 - 1 beneficiary Material (2) 162 $33,736 Lawrenceburg Less than $10,000 - 3 beneficiaries Dues and Fees (2) $3,242 $3,242 PSI Alliance for Growth and Progress, Inc. Dues and Fees (2) $10,000 Support (2) 5,000 American Coal Ash Association Dues (2) 25,578 Corporate Community Council Dues (2) 38,550 Edison Electric Institute Dues and Fees (1), (2), & (3) 56,211 Support (2) 6,800 Electric Power Research Institute Dues & Fees (1) & (3) 3,026,267 Support (1) & (3) 364,200 Indiana Chamber of Commerce Dues and Fees (2) 1,159 Support (2) 10,000 Indiana Electric Association Dues and Fees (1), (2), & (3) 173,054 Support (1) 500 Indiana Fiscal Policy Institute Dues (2) 16,500 Indiana Manufacturers Association Dues and Fees (1) & (2) 16,374 Less than $10,000 - 53 beneficiaries Dues and Fees (1) & (2) 25,479 $3,775,672 Power InternationLess than $10,000 - 1 beneficiary Advertising (1) $3,902 $3,902 Cinergy ResourcesLess than $10,000 - 2 beneficiaries Dues and Fees (1) $444 $444 Wholesale Power Less than $10,000 - 1 beneficiary Advertising (2) $1,981 *Account Charged: (1) Income deduction (2) Operating expense (3) Other balance sheet accounts
ITEM 8. SERVICE, SALES, AND CONSTRUCTION CONTRACTS Part I
In Effect Dec. 31, Serving Receiving Date of 1995 Transaction Company Company Compensation Contract (Yes or No) (in thousands) Propane plant and underground storage cavern ULH&P CG&E $ 244 05/23/61 Yes Process and sale of recyclable materials Recycling PSI 351 08/01/95 Yes Process and sale of recyclable materials Recycling CG&E 140 07/31/95 Yes Liquidation of power plant and other utility equipment(1) PESCO PSI 2,512 10/17/94 No (1) PESCO and CG&E have a similar agreement; however, the consideration paid to PESCO was less than $100,000.
Serving Receiving Transaction Company Company Compensation (in thousands) Construction and engineering services(1) CG&E Lawrenceburg $219 ULH&P 2,194 West Harrison 19 Tri-State 161 Customer relations services(1) CG&E Lawrenceburg 52 ULH&P 2,231 West Harrison 21 Gas and/or electric operations(1) CG&E Lawrenceburg 818 ULH&P 5,512 West Harrison 35 Miami 56 Sale of deisel generators PSI Power International 2,022
Part II None Part III None (1) Pursuant to Rel. No. 35-26146, dated October 21, 1994. ITE WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES Part I (a)Argentina and Costanera Prior to Costanera's sale in late 1995 of substantially all of its assets (see blow), Argentina and Costanera, both Idiana corporations, were EWGs. In November 1995, Costanera, a wholly-owned subsidiary of Argentina, sold to non-associates its 6% investment in the common stock of Central Costanera S.A. (Central Costanera). Central Costanera owns and operates a 1,260-megawatt (mw) dual fired (oil and gas) thermoelectric plant located in the city of Buenos Aires, Argentina. The investment in Central Costanera constituted substantially all of the assets of Costanera. Likewise, Costanera constitutes substantially all of the assets of Argentina. Therefore, at December 31, 1995, neither Argentina nor Costanera held any assets. Both companies notified the FERC in early 1996 that they no longer seek to maintain EWG status. PSI Energy Argentina PSI Energy Argentina is a foreign utility company (FUCO). PSI Energy Argentina, an Indiana corporation, owns an 8% interest in Distrilec Invesora, S.A. which owns a 51% interest in Edesur S.A., an electric-distribution network serving the southern half of the city of Buenos Aires, Argentina. Argentina, Costanera, and PSI Energy Argentina The business address of each Argentina, Costanera, and PSI Energy Argentina Argentina is 251 North Illinois Street, Suite 1410, Indianapolis, Indiana 46204. (b)Argentina and Costanera Investments and Argentina hold 100 shares of no par value common stock in Argentina and Costanera, respectively. At December 31, 1995, Investment's equity investment in Argentina was $16.8 million, representing the earnings of its its subsidiary, Costanera. PSI Energy Argentina PSI holds 100 shares of PSI Energy Argentina's no par value common stock. At December 31, 1995, PSI's equity investment in PSI Energy Argentina was $10.7 million. Argentina, Costanera, and PSI Energy Argentina Cinergy has neither directly nor indirectly guaranteed any securities of Argentina, Costanera, or PSI Energy Argentina. None of these companies has any debt or other financial obligations outstanding. (c)Argentina, Costanera, and PSI Energy Argentina Argentina, Costanera, and PSI Energy Argentina have no debt outstanding at December 31, 1995. Earnings for the year ended December 31, 1995, were $7.2 million for Argentina. Neither Costanera nor PSI Energy Argentina had any earnings or losses for such period. (d)Argentina, Costanera, and PSI Energy Argentina Non-utility service agreement, among Cinergy, non-utility subsidiaries of Cinergy, and Services. (Pursuant to Rel. No. 35-26146, dated 10-21-94.) In 1995, Services rendered accounting and legal services to Argentina in the amount of $124,000. Other Services PSI rendered marketing and corporate development services (including costs for facilities, office supplies, and other overhead charges) to Argentina during 1995 in the amount of $90,000. (Pursuant to Rel. No. 35-25674, dated 11-13-92.) Part II Argentina, Costanera, and PSI Energy Argentina See Exhibits H and I* Part III Argentina, Costanera, and PSI Energy Argentina Cinergy had aggregate investments of $16.8 million and $10.7 million, respectively, in EWGs* and FUCOs at December 31, 1995. The ratio of Cinergy's aggregate investment in both EWGs and FUCOs to its investment in domestic public utility subsidiary companies is less than 1%. *As previously discussed, at December 31, 1995, Argentina and Costanera held no assets. Given that these two companies were shell companies at year-end 1995 and have notified the FERC that they no longer seek to maintain EWG status, the requirement to provide audited financial statements for these companies has been waived by the Chief Financial Analyst in the Securities and Exchange Commission's Office of Public Utility Regulation (Chief Financial Analyst) pursuant to a conversation with Cinergy's Legal Department on April 2, 1996 (April 1996 discussion). ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS Consolidating Financial Statements, Schedules, and Notes -Notes 1 through 17 to the Financial Statements are incorporated herein by reference, in Exhibit A (page 24), in the Cinergy Annual Report on Form 10-K for 1995 (Item 8. Financial Statements and Supplementary Data). -Notes 1 through 17 to the Financial Statements are incorporated herein by reference, in Exhibit A (page 24), in the CG&E Annual Report on Form 10-K for 1995 (Item 8. Financial Statements and Supplementary Data). -Notes 1 through 17 to the Financial Statements are incorporated herein by reference, in Exhibit A (page 24), in the PSI Annual Report on Form 10-K for 1995 (Item 8. Financial Statements and Supplementary Data). -Notes 1 through 17 to the Financial Statements are incorporated herein by reference, in Exhibit A (page 24), in the ULH&P Annual Report on Form 10-K for 1995 (Item 8. Financial Statements and Supplementary Data). Exhibits -F-1 Report of Independent Public Accountants. -F-2 Consolidating Financial Statements of Cinergy for 1995. -F-3 Consolidating Financial Statements of CG&E for 1995. -F-4 Consolidating Financial Statements of Investments for 1995. -F-5 Consolidating Financial Statements of Power International for 1995. -F-6 Consolidating Financial Statements of Bruwabel for 1995. -F-7 Consolidating Financial Statements of PSI for 1995. -F-8 Consolidating Financial Statements of Argentina for 1995. -F-9 Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. - - H-1 Organizational chart showing relationship of Argentina, PSI Energy Argentina, and Costanera to other system companies. - - I-1 Audited Financial Statements of PSI Energy Argentina at or for the year ended December 31, 1995. ITEM 10. EXHIBITS Copies of the documents listed below which are identified with an asterisk (*) have heretofore been filed with the SEC and are incorporated herein by reference and made a part hereof. Exhibits not so identified are filed herewith unless otherwise stated. EXHIBIT DESIGNATION NATURE OF EXHIBIT A-1 *Annual Report of Cinergy on Form 10-K as amended April 19, 1996, for the year ended December 31, 1995. (File No. 1-11377.) A-2 Annual Report to Shareholders for Cinergy for the year ended December 31, 1995. (Filed under cover of Form SE.) A-3 *Annual Report of CG&E on Form 10-K for the year ended December 31, 1995. (File No. 1-1232.) A-4 *Annual Report of PSI on Form 10-K for the year ended December 31, 1995. (File No. 1-3543.) A-5 *Annual Report of ULH&P on Form 10-K for the year ended December 31, 1995. (File No. 2-7793.) B-1 *Certificate of Incorporation of Cinergy. (Exhibit to Cinergy's 1993 Form 10-K in File No. 1-11377.) B-2 *By-laws of Cinergy as amended January 25, 1996. (Exhibit to Cinergy's Form U-1 Declaration filed February 23, 1996, in File No. 70-8807.) B-3 *Amended Articles of Incorporation of CG&E effective January 24, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) B-4 *Regulations of CG&E as amended, adopted June 16, 1995. (Exhibit to CG&E's Form 8-A dated July 24, 1995, in File No. 1-1232.) B-5 *Amended Articles of Consolidation of PSI as amended April 20, 1995. (Exhibit to PSI's June 30, 1995, Form 10-Q in File No. 1-3543.) B-6 *By-laws of PSI as amended January 25, 1996. (Exhibit to PSI's 1995 Form 10-K in File No. 1-3543.) B-7 *Restated Articles of Incorporation of ULH&P made effective May 7, 1976. (Exhibit to ULH&P's Form 8-K, May 1976, in File No. 2-7793.) B-8 *By-laws of ULH&P as amended, adopted by shareholders June 16, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No. 2-7793.) B-9 Articles of Incorporation of South Construction. B-10 By-laws of South Construction. B-11 Articles of Incorporation of PSI Energy Argentina. B-12 By-laws of PSI Energy Argentina. B-13 Certificate of Incorporation of Services. B-14 By-laws of Services. B-15 Articles of Incorporation of Miami as amended. B-16 By-laws of Miami. B-17 Articles of Incorporation of West Harrison as amended. B-18 By-laws of West Harrison. B-19 Articles of Incorporation of Lawrenceburg. B-20 By-laws of Lawrenceburg. B-21 Articles of Incorporation of Tri-State. B-22 Regulations of Tri-State. B-23 Articles of Incorporation of KO Transmission. B-24 By-laws of KO Transmission. B-25 Certificate of Incorporation of Investments. B-26 By-laws of Investments. B-27 Certificate of Incorporation of CGE ECK. B-28 By-laws of CGE ECK. B-29 Certificate of Incorporation of Cinergy Resources. B-30 By-laws of Cinergy Resources. B-31 Articles of Incorporation of Technology. B-32 By-laws of Technology. B-33 Articles of Incorporation of Argentina. B-34 By-laws of Argentina. B-35 Articles of Incorporation of Costanera. B-36 By-laws of Costanera. B-37 Articles of Incorporation of PSI International, Inc. B-38 By-laws of PSI International, Inc. B-39 Articles of Incorporation of PSI Power Resource Development, Inc. B-40 By-laws of PSI Power Resource Development, Inc. B-41 Articles of Incorporation of PSI Power Resource Operations, Inc. B-42 By-laws of PSI Power Resource Operations, Inc. B-43 Articles of Incorporation of Recycling. B-44 By-laws of Recycling. B-45 Articles of Incorporation of PSI Sunnyside, Inc. B-46 By-laws of PSI Sunnyside, Inc. B-47 Articles of Incorporation of PSI T&D International, Inc. B-48 By-laws of PSI T&D International, Inc. B-49 Articles of Incorporation of PSI Yacyreta, Inc. B-50 By-laws of PSI Yacyreta, Inc. B-51 Articles of Incorporation of PESCO. B-52 By-laws of PESCO. B-53 Articles of Incorporation of Power International. B-54 Regulations of Power International. B-55 Articles of Incorporation of Wholesale Power. B-56 By-laws of Wholesale Power. C-1 *Original Indenture (First Mortgage Bonds) between CG&E and The Bank of New York (as successor Trustee) dated as of August 1, 1936. (Exhibit to CG&E's Registration Statement No. 2-2374.) C-2 *Tenth Supplemental Indenture between CG&E and The Bank of New York dated as of July 1, 1967. (Exhibit to CG&E's Registration Statement No. 2-26549.) C-3 *Eleventh Supplemental Indenture between CG&E and The Bank of New York dated as of May 1, 1969. (Exhibit to CG&E's Registration Statement No. 2-32063.) C-4 *Thirteenth Supplemental Indenture between CG&E and The Bank of New York dated as of November 1, 1971. (Exhibit to CG&E's Registration Statement No. 2-41974.) C-5 *Fourteenth Supplemental Indenture between CG&E and The Bank of New York dated as of November 2, 1972. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-6 *Fifteenth Supplemental Indenture between CG&E and The Bank of New York dated as of August 1, 1973. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-7 *Thirty-second Supplemental Indenture between CG&E and The Bank of New York dated as of December 15, 1991. (Exhibit to CG&E's Registration Statement No. 33-45115.) C-8 *Thirty-third Supplemental Indenture between CG&E and The Bank of New York dated as of September 1, 1992. (Exhibit to CG&E's Registration Statement No. 33-53578.) C-9 *Thirty-fourth Supplemental Indenture between CG&E and The Bank of New York dated as of October 1, 1993. (Exhibit to CG&E's September 30, 1993, Form 10-Q in File No. 1-1232.) C-10 *Thirty-fifth Supplemental Indenture between CG&E and The Bank of New York dated as of January 1, 1994. (Exhibit to CG&E's Registration Statement No. 33-52335.) C-11 *Thirty-sixth Supplemental Indenture between CG&E and The Bank of New York dated as of February 15, 1994. (Exhibit to CG&E's Registration Statement No. 33-52335.) C-12 *Loan Agreement between CG&E and County of Boone, Kentucky dated as of February 1, 1985. (Exhibit to CG&E's 1984 Form 10-K in File No. 1-1232.) C-13 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of December 1, 1985. (Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.) C-14 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of December 1, 1985. (Exhibit to CG&E's 1985 Form 10-K in File No. 1-1232.) C-15 *Repayment Agreement between CG&E and The Dayton Power and Light Company dated as of December 23, 1992. (Exhibit to CG&E's 1992 Form 10-K in File No. 1-1232.) C-16 *Loan Agreement between CG&E and State of Ohio Water Development Authority dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-17 *Loan Agreement between CG&E and State of Ohio Air Quality Development Authority dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-18 *Loan Agreement between CG&E and County of Boone, Kentucky dated as of January 1, 1994. (Exhibit to CG&E's 1993 Form 10-K in File No. 1-1232.) C-19 *Original Indenture (Unsecured Debt Securities) between CG&E and The Fifth Third Bank dated as of May 15, 1995. (Exhibit to CG&E's Form 8-A dated July 24, 1995, in File No. 1-1232.) C-20 *First Supplemental Indenture between CG&E and The Fifth Third Bank dated as of June 1, 1995. (Exhibit to CG&E's June 30, 1995, Form 10-Q in File No. 1-1232.) C-21 *Second Supplemental Indenture between CG&E and The Fifth Third Bank dated as of June 30, 1995. (Exhibit to CG&E's Form 8-A dated July 24, 1995, in File No. 1-1232.) C-22 *Loan Agreement between CG&E and the State of Ohio Air Quality Development Authority dated as of September 13, 1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in File No. 1-1232.) C-23 *Loan Agreement between CG&E and the State of Ohio Air Quality Development Authority dated as of September 13, 1995. (Exhibit to CG&E's September 30, 1995, Form 10-Q in File No. 1-1232.) C-24 *Original Indenture (First Mortgage Bonds) dated September 1, 1939, between PSI and The First National Bank of Chicago, as Trustee (Exhibit A-Part 3 in File No. 70- 258), and LaSalle National Bank as successor Trustee (Supplemental Indenture dated March 30, 1984). C-25 *Nineteenth Supplemental Indenture between PSI and The First National Bank of Chicago dated January 1, 1972. (Exhibit to File No. 2-42545.) C-26 *Twenty-third Supplemental Indenture between PSI and The First National Bank of Chicago dated January 1, 1977. (Exhibit to File No. 2-57828.) C-27 *Twenty-fifth Supplemental Indenture between PSI and The First National Bank of Chicago dated September 1, 1978. (Exhibit to File No. 2-62543.) C-28 *Twenty-seventh Supplemental Indenture between PSI and The First National Bank of Chicago dated March 1, 1979. (Exhibit to File No. 2-63753.) C-29 *Thirty-fifth Supplemental Indenture between PSI and The First National Bank of Chicago dated March 30, 1984. (Exhibit to PSI's 1984 Form 10-K in File No. 1-3543.) C-30 *Thirty-ninth Supplemental Indenture between PSI and The First National Bank of Chicago dated March 15, 1987. (Exhibit to PSI's 1987 Form 10-K in File No. 1-3543.) C-31 *Forty-first Supplemental Indenture between PSI and The First National Bank of Chicago dated June 15, 1988. (Exhibit to PSI's 1988 Form 10-K in File No. 1-3543.) C-32 *Forty-second Supplemental Indenture between PSI and The First National Bank of Chicago dated August 1, 1988. (Exhibit to PSI's 1988 Form 10-K in File No. 1-3543.) C-33 *Forty-fourth Supplemental Indenture between PSI and The First National Bank of Chicago dated March 15, 1990. (Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.) C-34 *Forty-fifth Supplemental Indenture between PSI and The First National Bank of Chicago dated March 15, 1990. (Exhibit to PSI's 1990 Form 10-K in File No. 1-3543.) C-35 *Forty-sixth Supplemental Indenture between PSI and The First National Bank of Chicago dated June 1, 1990. (Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.) C-36 *Forty-seventh Supplemental Indenture between PSI and The First National Bank of Chicago dated July 15, 1991. (Exhibit to PSI's 1991 Form 10-K in File No. 1-3543.) C-37 *Forty-eighth Supplemental Indenture between PSI and The First National Bank of Chicago dated July 15, 1992. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-38 *Forty-ninth Supplemental Indenture between PSI and The First National Bank of Chicago dated February 15, 1993. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-39 *Fiftieth Supplemental Indenture between PSI and The First National Bank of Chicago dated February 15, 1993. (Exhibit to PSI's 1992 Form 10-K in File No. 1-3543.) C-40 *Fifty-first Supplemental Indenture between PSI and The First National Bank of Chicago dated February 1, 1994. (Exhibit to PSI's 1993 Form 10-K in File No. 1-3543.) C-41 *Indenture (Secured Medium-term Notes, Series A), dated July 15, 1991, between PSI and The First National Bank of Chicago, as Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2, dated July 15, 1993, in File No. 1-3543.) C-42 *Indenture (Secured Medium-term Notes, Series B), dated July 15, 1992, between PSI and The First National Bank of Chicago, as Trustee. (Exhibit to PSI's Form 10-K/A, Amendment No. 2, dated July 15, 1993, in File No. 1-3543.) C-43 *Original Indenture (First Mortgage Bonds) between ULH&P and The Bank of New York dated as of February 1, 1949. (Exhibit to ULH&P's Registration Statement No. 2-7793.) C-44 *Fifth Supplemental Indenture between ULH&P and The Bank of New York dated as of January 1, 1967. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-45 *Seventh Supplemental Indenture between ULH&P and The Bank of New York dated as of October 1, 1973. (Exhibit to CG&E's Registration Statement No. 2-60961.) C-46 *Eighth Supplemental Indenture between ULH&P and The Bank of New York dated as of December 1, 1978. (Exhibit to CG&E's Registration Statement No. 2-63591.) C-47 *Thirteenth Supplemental Indenture between ULH&P and The Bank of New York dated as of August 1, 1992. (Exhibit to ULH&P's 1992 Form 10-K in File No. 2-7793.) C-48 *Original Indenture (Unsecured Debt Securities) between ULH&P and The Fifth Third Bank dated as of July 1, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No. 2-7793.) C-49 *First Supplemental Indenture between ULH&P and The Fifth Third Bank dated as of July 15, 1995. (Exhibit to ULH&P's June 30, 1995, Form 10-Q in File No. 2-7793.) C-50 Original Indenture (First Mortgage Bonds) between Lawrenceburg and Star Bank, N.A. dated as of March 1, 1955. (Not filed herewith, pursuant to the April 1996 discussion with the Chief Financial Analyst.) C-51 Seventh Supplemental Indenture between Lawrenceburg and Star Bank, N.A. dated as of October 1, 1986. (See preceding item.) C-52 *Agreement for Purchase and Sale of Assets, dated March 31, 1994, by and between Columbia Gas as Seller and KO Transmission as Buyer. (Exhibit to Cinergy's Form U5B filed January 23, 1995.) C-53 *Agreement for Purchase and Sale of Line AM-4, dated March 31, 1994, by and between Columbia Gas as Seller and KO Transmission as Buyer. (Exhibit to Cinergy's Form U5B filed January 23, 1995.) D-1 Agreement between Cinergy and subsidiary companies for filing consolidated income tax returns and for allocation of consolidated income tax liabilities and benefits. F-1 Opinion of Independent Public Accountants. F-2 Cinergy's Consolidating Financial Statements at or for the year ended December 31, 1995. F-3 CG&E's Consolidating Financial Statements at or for the year ended December 31, 1995. F-4 Investments' Consolidating Financial Statements at or for the year ended December 31, 1995. F-5 Power International's Consolidating Financial Statements at or for the year ended December 31, 1995. F-6 Bruwabel's Consolidating Financial Statements at or for the year ended December 31, 1995. F-7 PSI's Consolidating Financial Statements at or for the year ended December 31, 1995. F-8 Argentina's Consolidating Financial Statements at or for the year ended December 31, 1995. F-9 Item 6. Part III - Supplemental Information Regarding Compensation and Security Ownership of Officers and Directors of System Companies. F-10 *Classified plant accounts and related depreciation or amortization reserve schedules included in the Ferc Form No. 1 of PSI. (Pursuant to the April 1996 discussion with the Chief Financial Analyst, a paper copy of such annual report has been provided to the Chief Financial Analyst concurrently herewith.) F-11 *Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of CG&E. (Pursuant to the April 1996 discussion with the Chief Financial Analyst, paper copies of such annual reports have been provided to the Chief Financial Analyst concurrently herewith.) F-12 *Classified plant accounts and related depreciation or amortization reserve schedules included in the FERC Form Nos. 1 and 2 of ULH&P. (Pursuant to the April 1996 discussion with the Chief Financial Analyst, paper copies of such annual reports have been provided to the Chief Financial Analyst concurrently herewith.) F-13 *Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of West Harrison to the Indiana Utility Regulatory Commission (IURC). (Pursuant to the April 1996 discussion with the Chief Financial Analyst, a paper copy of such annual report has been provided to the Chief Financial Analyst concurrently herewith.) F-14 *Classified plant accounts and related depreciation or amortization reserve schedules included in the Annual Report of Lawrenceburg to the IURC. (Pursuant to the April 1996 discussion with the Chief Financial Analyst, a paper copy of such annual report has been provided to the Chief Financial Analyst concurrently herewith.) G-1 Financial Data Schedules for Cinergy and Subsidiaries. (Included in electronic submission only.) H-1 Organizational chart showing relationship of Argentina, PSI Energy Argentina, and Costanera to other system companies. I-1 Audited Financial Statements of PSI Energy Argentina at or for the year ended December 31, 1995. I-2(a) Unuaudited Financial Statements of Argentina at or for the year ended December 31, 1995. I-3(a) Unaudited Financial Statements of Costanera at or for the year ended December 31, 1995. (a) As described in "Item 9. Wholesale Generators and Foreign Utility Companies," in 1995, Costanera sold its only investment, an interest in the 1,260-mw Costanera power plant in Buenos Aires, Argentina, to non-associated companies. Likewise, Costanera constituted substantially all of the assets of Argentina. Given that these two companies were shell companies at December 31, 1995, and have notified the FERC that they no longer seek to maintain EWG status, the requirement to provide audited financial statements for these companies was waived by the Chief Financial Analyst in the April 1996 discussion. The unaudited financial statements of Argentina and Costanera are included in Exhibits F-4 and F-8 herein. SIGNATURE Each undersigned system company has duly caused this annual report to be signed on its behalf by the undersigned thereunto duly authorized pursuant to the requirements of the Public Utility Holding Company Act of 1935. The signature of each undersigned company shall be deemed to relate only to matters having reference to such company or its subsidiaries. CINERGY CORP. /S/ William L. Sheafer By: William L. Sheafer Treasurer Date: April 30, 1996 EX-99.B.9 2 ARTICLES OF REORGANIZATION of SOUTH CONSTRUCTION COMPANY The provisions of the original Articles of Incorporation or Association are hereby restated in conformity with "The Indiana General Corporation Act" approved March 16, 1929, Chapter 215 of the Acts of the Indiana General Assembly for 1929, as follows: 1. The name of this corporation shall be SOUTH CONSTRUCTION COMPANY, INC. 2. The purpose or purposes for which it is reorganized are as follows: To construct, erect and install, and to dismantle, salvage and scrap, railroads, interurban railroads, street railroads, electric transmission lines and distribution systems, highways, streets, buildings or other structures and carry on a general construction, dismantling and salvage business, and to buy, sell and deal in used railroad, interurban railroad, street railroad, electrical and building supplies, materials and equipment, and to buy, sell, lease and deal in real estate and any interest therein. 3. The period during which it is to continue as a reorganized corporation is perpetual. 4. The post office address of its principal office is 110 North Illinois Street, Indianapolis, Marion County, Indiana. The name of its resident agent is W. Marshall Dale, 110 North Illinois Street, Indianapolis, Marion County, Indiana. 5. The total number of shares into which its authorized capital stock is to be divided is ten (10) consisting of shares as follows: 10 shares having a par value of $100.00 no shares having no par value. 6. (If the shares are to be divided into classes or kinds the designations of the different classes, the number and par value, if any of the shares of each class, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each class, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each class by resolution or resolutions adopted prior to the issuance of any of the shares of such class; and, if the shares of any class are to be issuable in series, descriptions of the several series, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each series, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each series by resolution or resolutions adopted prior to the issuance of any of the shares of such series.) Indicate here: none 7. (If the shares are to be divided into classes or kinds, a statement of the voting rights and powers, if any, of the shares of each class, and of each series if the shares of any class are to be issuable in series, including the extent, if any, to which the shares of each such class and series shall be entitled to vote on questions of merger, consolidation and the sale of all or of substantially all of the assets of the corporation.) Indicate here: none 8. The amount of paid in capital with which this reorganized corporation will continue in business is $1000.00. (This must not be less than $500.00.) 9. The number of directors of this corporation shall be three (This must be an exact number and cannot be stated in the alternative). 10. The names and addresses of the first board of directors of the reorganized corporation are as follows: Chester D. Porter, 110 North Illinois St., Indianapolis, Marion County, Indiana Edwin J. Booth, 110 North Illinois St., Indianapolis, Marion County, Indiana W. Marshall Dale, 110 North Illinois St., Indianapolis, Marion , Indiana 11. (Any other provisions, consistent with the laws of this state, for the regulation of the business and conduct of the affairs of the corporation, and creating, defining, limiting or regulating the powers of the corporation of the directors or of the shareholders or any class or classes of shareholders.) Indicate here: Witness our hands and seals this 31st day of May, 1934, at Indianapolis, Indiana. /s/ Chester D. Porter Chester D. Porter President /s/ Lois Allen Lois Allen Secretary STATE OF INDIANA CCOUNTY OF MARION Before me, Dorotha A. Gossett, a Notary Public in and for said County and State, personally appeared Chester D. Porter and Lois Allen to me well known to be the President and Secretary, respectively of the above named corporation and severally acknowledged the execution of the foregoing Articles of Reorganization and swore to the contents thereof this 31st day of May, 1934. (SEAL) My commission expires June 13, 1937. EX-99.B.10 3 BY-LAWS OF SOUTH CONSTRUCTION COMPANY, INC. 1. DIRECTORS The business and prudential affairs of this Company shall be managed by the Board of Directors, three in number. 2. FISCAL YEAR The fiscal year of the Company shall end on the 30th day of June in each year. The annual meeting of the stockholders shall be held at the office of the company on the last Monday in February in each year at 9:40 o'clock A.M. 3. OFFICERS The officers of the Company shall be a President, Vice- President, Secretary and Treasurer and such other officers as the Board of Directors may designate. The office of Secretary and Treasurer may be filled by one person at the option of the Board of Directors. 4. DUTIES AND POWERS OF OFFICERS The President shall have the usual powers and duties; and shall have the power to employ and discharge employees, make contracts for and on behalf of the Company and have such general supervision over the affairs of said Company as may be necessary, and carry out and execute the orders and directions of the Board of Directors. The Vice-President shall have the powers and perform the duties of the President in the absence or disability of the President and shall have such other powers and duties as may be delegated to him by the Board of Directors or the President. 5. SIGNATURES RECORDS AMENDMENTS All checks, notes, drafts, demands or orders for the payment of money shall be signed by such officers as the Board of Directors from time to time, by resolution, may direct. The Secretary and Treasurer shall procure and keep the necessary minute and account books. The Directors may make, adopt, amend, alter and repeal these by-laws at any special or regular meeting of the Board of Directors. 6. DIRECTORS MEETINGS The Directors shall meet regularly once a month at the general office of the Company in the City of New Albany on the 2nd Monday of each month at 10 o'clock A.M. without notice thereof, and the President of the Company shall have the power to call special meetings of said directors at any time by giving one day's written notice of any such special meeting or any two directors of said Company may call a special meeting of said Board of Directors by giving to the Directors one day's written notice of such special call. 7. These by-laws shall be in full force and effect from and after their adoption unless altered, repealed or modified as aforesaid. EX-99.B.11 4 ARTICLES OF INCORPORATION OF PSI ENERGY ARGENTINA, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Energy Argentina, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production and distribution facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage in any other lawful energy, environmental, or functionally related business permitted to a corporation organized under the Act; (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (f) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (g) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (h) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (i) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (j) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (k) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations, and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations, and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B)(iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations, and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation, or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations, and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations, and restrictions expressly provided in this ARTICLE V (B)(i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed, or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i)(h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i)(g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation, or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger, or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation, or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i)(d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption), and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversation or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B)(iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize, or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation, or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration, or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration, or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation, or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved, or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation, or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase, or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital, or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants, or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire, or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures, or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change, or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold, and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification, or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley Cheryl M. Foley DATED: June 5, 1992 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.12 5 BY-LAWS OF PSI ENERGY ARGENTINA, INC. BY-LAWS OF PSI ENERGY ARGENTINA, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of PSI Energy Argentina, Inc. shall be at 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in the shareholder's name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote at such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by an inspector, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspector, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such inspector. Such inspector may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason the inspector previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector in place of such inspector failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the person to act as inspector at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than two (2) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which the director's term expires and until the director's successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. The chairman shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for the president by the board of directors or the chairman. The president shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. The vice president and general manager shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for the president and general manager by the board of directors, the chairman or the president. The vice president and general manager shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist in the secretarial duties and shall have such other powers and duties as may be prescribed for such assistant secretary by the board of directors, or be delegated to such assistant secretary by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, those powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and such assistant secretary shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. The treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during the treasurer's term of office. When necessary or proper, the treasurer shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into the treasurer's possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into the treasurer's possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. The treasurer shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. The treasurer shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all the treasurer's transactions as treasurer and of the financial condition of the corporation. The treasurer shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the treasurer's possession or under the treasurer's control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist in the duties of the treasurer, and shall have such other powers and duties as may be prescribed for the assistant treasurer by the board of directors or be delegated to the assistant treasurer by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, those powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and such assistant treasurer shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. The comptroller shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. The comptroller shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. The auditor shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. The auditor shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of the shareholder's shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if the chairman be present, or in the chairman's absence by the president of this corporation if the president be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors from time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.13 6 CERTIFICATE OF INCORPORATION OF Cinergy Services, Inc. FIRST: The name of the Corporation is Cinergy Services, Inc. (hereinafter the "Corporation"). SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the "GCL"), including, but not limited to, the performance of activities, such as managerial, financial, accounting, legal, engineering, construction, purchasing, marketing, auditing, statistical, dispatching, advertising, publicity, tax, research, and other similar services. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one hundred (100) shares of Common Stock, each having a par value of five cents ($.05). FIFTH: The name and mailing address of the Sole Incorporator is as follows: Name Address Deborah M. Reusch P.O. Box 636 Wilmington, DE 19899 SIXTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: (1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. (2) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation. (3) The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide. (4) No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article SIXTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. (5) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted. SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 23rd day of February, 1994. /s/ Deborah M. Reusch Deborah M. Reusch Sole Incorporator EX-99.B.14 7 BY-LAWS OF CINERGY SERVICES, INC. (hereinafter called the "Corporation") ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. Meetings of the stock- holders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 3. Special Meetings. Unless otherwise pre- scribed by law or by the Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chairman, if there be one, or (ii) the President, and shall be called by any such officer at the request in writing of a majority of the Board of Directors or at the request in writing of stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stock- holder entitled to vote at the meeting. Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot. Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 7. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present. Section 8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. ARTICLE III DIRECTORS Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen members, the exact number of which shall be fixed by the Board of Directors. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders. Any director may be removed at any time with or without cause by a majority vote of the stockholders. Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the stockholders, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and quali- fied, or until their earlier resignation or removal. Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By- Laws directed or required to be exercised or done by the stockholders. Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or any directors. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting. Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 9. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV OFFICERS Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a director) and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation. Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors. Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons. Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. He shall be the Chief Executive Officer of the Corporation, and except where by law the signature of the Presi- dent is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By- Laws or by the Board of Directors. Section 5. President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. If there be no Chairman of the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors. Section 6. Vice Presidents. At the request of the President or in his absence or in the event of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Presi- dent. Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secre- tary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certifi- cates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be. Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. Section 9. Assistant Secretaries. Except as may be otherwise provided in these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secre- tary. Section 10. Assistant Treasurers. Assistant Treasur- ers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Trea- surer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. Section 11. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. ARTICLE V STOCK Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation. Section 2. Signatures. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certifi- cate alleged to have been lost, stolen or destroyed. Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By- Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued. Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE VI NOTICES Section 1. Notices. Whenever written notice is re- quired by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by tele- gram, telex or cable. Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these By- Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corpo- ration shall be a calendar year. Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII INDEMNIFICATION Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director or officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or offi- cer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case. Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Section 5. Indemnification by a Court. Notwith- standing any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he has met the applicable standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. Section 6. Expenses Payable in Advance. Expenses in- curred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Section 7. Nonexclusivity of Indemnification and Ad- vancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article VIII. Section 9. Certain Definitions. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VIII. Section 10. Survival of Indemnification and Advance- ment of Expenses. The indemnification and advancement of expens- es provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 11. Limitation on Indemnification. Notwith- standing anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation. Section 12. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation. ARTICLE IX AMENDMENTS Section 1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office; provided, however, that any amendment to Article III of these By-Laws may not be effected without the majority vote of the stockholders. Section 2. Entire Board of Directors. As used in this Article IX and in these By-Laws generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies. EX-99.B.15 8 MIAMI POWER CORPORATION _______ ARTICLES OF INCORPORATION _______ WITH ALL AMENDMENTS THROUGH DECEMBER 21, 1968 Approved & Filed Mar. 25, 1930 Otto G. Fifield Secretary of State ARTICLES OF INCORPORATION of MIAMI POWER CORPORATION The undersigned, being three or more natural persons of lawful age, at least a majority of whom are citizens of the United States, do hereby adopt the following articles of incorporation, representing beforehand to the Secretary of State of the State of Indiana and all persons whom it may concern, that subscription lists for subscriptions to the shares of the capital stock of the above named corporation for which certificate of incorporation is hereby applied for, have heretofore been opened in accordance with law and that subscriptions to the shares of the corporation have been obtained in an amount not less than One Thousand ($1,000) Dollars. Be it further remembered that the following Articles of Incorporation and all matters heretofore done or hereafter to be done are in accordance with "An Act concerning domestic and foreign corporations for profit, providing penalties for the violation hereof, and repealing all laws or parts of laws in conflict herewith", approved March 16, 1929, and all acts amendatory thereof and supplemental thereto. 1. The name of this corporation shall be Miami Power Corporation. 2. The purpose or purposes for which it is formed are as follows: To manufacture, generate, produce, buy, sell, accumulate, store, transmit, utilize, furnish and distribute electrical energy for light, heat, power and other purposes; to construct, erect, purchase, lease or in any manner acquire, to maintain, operate, manage, and use, and to sell, mortgage, lease, let or in any manner dispose of or deal with, power plants, power lines, transmission lines, generating stations, machinery, appliances, apparatus, equipment and facilities of every kind and character for the manufacture, generation, production, storage, accumulation, transmission and use of electrical energy for any and all purposes; to construct, erect, purchase, lease or in any manner acquire, to maintain operate, manage and use, and to sell, mortgage, lease, let or in any manner dispose of or deal with, hydro-electric power plants, together with everything whatsoever pertaining thereto, and to purchase or in any manner acquire, hold, control, use, sell, lease, mortgage or otherwise dispose of water, water rights, water power privileges and flowage rights for use in connection with such power plants and the generation, production, accumulation, transmission and distribution of electrical energy for any and all purposes. To carry on a general business of electricians, mechanical engineers and suppliers of electricity for the purpose of light, heat and power or otherwise, and to install, erect and maintain and operate, sell or lease wires, cables and fixtures, both interior and exterior for the transmission and use of electrical energy and to manufacture and deal in all apparatus and things required for or capable of being used in connection with the generation, distribution, supply, accumulation, consumption and employment of electricity. To buy, sell, mortgage, operate and lease pole lines, erect poles, string wires thereon and on poles of individuals and corporations, on any and all streets, avenues, highways and roads of counties, parishes, townships, villages and cities and over and along all canals and other waterways, and over and across bridges and through tunnels and over and across all lands belonging to or controlled by individuals, corporations, municipalities, counties, parishes, states, the national government or any governmental subdivision of the national government (subject, however, to the consent of governmental or municipal authorities where the same may be required by law), and to use the same both as through lines and for local delivery for the transmission and distribution of electrical energy, and to sell and lease to other individuals or corporations the right to place electric wires on or attach electric wires to any or all poles so erected, owned or lease. To build and construct, purchase and use for any of the purposes stated above, underground subways and conduits in such streets, avenues, highways, roads and under such canals, and other waterways, and through any tunnels and under any public or private lands, and place electric wires and conductors therein, and to buy and lease from and sell and let to any individual or corporation the right to place and use as aforesaid electric wires or conductors in any such subways, (subject, however, to the consent of governmental or municipal authorities where the same may be required by law). To acquire, sell, mortgage, lease, construct, maintain and operate water works, and to supply cities, towns, villages, municipalities, corporations and individuals with water, water power and water service for domestic, mechanical, manufacturing, business, public, fire protection and all other purposes, and to construct, erect, or in any manner acquire, to own, hold and operate, and to sell, exchange, lease, encumber, or in any manner dispose of, works, dams, buildings, plants, pumping stations, reservoirs, machinery, equipment, fixtures, pipes, hydrants, mains, apparatus, appliances, facilities, rights, privileges, franchises, ordinances, and all such real and personal property, as may be necessary, useful or convenient to the business of procuring and furnishing water, water power and water service; to manufacture, buy, sell, lease and deal in fixtures and appliances capable of being employed in connection with the supply and use of water, and water power; to acquire, carry on, exploit and deal with and in plants, works, dams, buildings, pumping stations, lands, property, franchises, equipment, fixtures, pipes, power houses, good will and business of water companies and persons engaged in the business of furnishing to municipalities, corporations and/or individuals, water, water power and water service; and to carry on any business incidental thereto. To engage in, manage, operate and conduct any one or more or all of the businesses commonly classed as public service and public utilities, particularly including, but not limited to, the businesses of supplying any one or more or all of the following, for employment in any manner in which the same may be employed, to-wit: electric light as well as light in every other form; power and energy, in the form of electrical current as well as in every other form; heat from circulating steam, hot water, or otherwise; natural gas; artificial gas; water; ice; storage and warehousing facilities; and communication service by telephone and/or telegraph, or otherwise, both with and without wires. To acquire by construction, purchase or otherwise, and to maintain, manage and operate any plant or property for the manufacture, production, storage, transmission, sale and distribution of natural or artificial gas, ice, water, heat or light, or any system, plant or properties for communication service by telephone, telegraph or otherwise, both with and without wires, and to acquire by construction, purchase or otherwise, and/or to maintain, manage and operate any other property or business. To construct, manufacture, buy, sell, install, lease or otherwise dispose of and deal in and trade in works, machinery, appliances, instruments, fixtures, devices, supplies, materials and articles of every nature and description used or capable of being used in the manufacture, production, generation, accumulation, transmission, distribution, control, measurement or other application or use in any manner whatsoever of electricity, natural or artificial gas, water, oil, ice, cold, refrigeration, heat, and any power now known or which may hereafter be discovered or invented, or in the conduct of a telegraph and/or telephone business, both with and without wires, or in the operation of bus lines and/or street railways and/or interurban railways. To manufacture, buy, sell, lease and otherwise acquire and dispose of, and generally trade and deal, as principal, agent, factor, on commission or otherwise, in metals of all kinds, iron, steel, manganese, coal, coke, copper, lumber and other materials, and any articles consisting or partly consisting thereof, and all or any products thereof, and in metal, electrical, mechanical and mercantile devices, specialties, machines, appliances, utilities, implements, castings, parts, tools, fixtures, hardware, instruments and apparatus of every kind and nature, and any other articles of commerce ordinarily made in a thoroughly equipped machine shop, factory, laboratory or foundry. To manufacture, acquire, buy, hold, sell and dispose of in any lawful manner, and generally deal in and with goods, wares, merchandise, property and commodities of any and every class and description, and all articles used or useful in connection therewith, insofar as may be permitted by the laws of Indiana; to engage in any business, whether manufacturing or otherwise, which this corporation may deem advantageous or useful in connection with any or all of the foregoing; and to purchase, acquire, manufacture, prepare for market, sell and otherwise acquire, hold and dispose of any article or thing which this corporation may use in connection with its business, or which may be employed in utilizing the products sold or the services rendered by this corporation or by any other corporation, firm, association or individual in whose securities or obligations this corporation is interested either as holder, guarantor, or otherwise, or which will foster the sale or use of such products or service. To obtain the grant of, condemn by eminent domain proceedings or otherwise, appropriate, purchase, lease or otherwise acquire any franchises, easements, consessions, rights, options, patents, licenses, powers, authorities, privileges, lands, rights of way, sites, properties, undertakings or business, or any right, option or contract in relation thereto, and to perform, carry out and fulfill the terms and conditions thereof, and to carry the same into effect, and to develop, maintain, lease, sell, transfer, dispose of and otherwise deal with the same, subject, however, to the provisions of the laws of the State of Indiana and the consent of any governmental authority, supreme, municipal or local that may be required by law. To organize, incorporate, reorganize, consolidate, merge, finance and to aid and assist, financially or otherwise, companies, corporations, joint stock companies, syndicates, partnerships and associations of all kinds, particularly including, but not limited to, those engaged in operating public service facilities and public utilities, and to underwrite, subscribe for and endorse the bonds, stocks, securities, debentures, notes or undertakings of any such company, corporation, joint stock company, syndicate, partnership or association, and to make any guaranty in connection therewith or otherwise for the payment of money or for the performance of any obligations or undertaking, and to do any and all things necessary or convenient to carry any of such purposes into effect. To purchase, acquire, take, subscribe for, contract to purchase, own, hold, sell, assign, transfer, guarantee, mortgage, hypothecate, pledge, contract to sell or otherwise dispose of bonds, debentures, shares of stock, securities, scrip, mortgages, real estate certificates, obligations, contracts and notes issued or created by other corporations, associations, societies or companies, whether public, private or municipal, or any corporate body; to exercise and enjoy to the same full extent as natural persons could do all rights and privileges accruing to or vesting in the holder or owners of the said property and chooses in action aforesaid and to do everything needful, convenient, desirable, or considered proper, for the protection, improvement, betterment or enhancement of the value of the said property or chooses in action or any class thereof and in any manner to aid or cooperate with such corporations, associations, societies or companies or with the bondholders or stockholders thereof as circumstances may require and as may be necessary, convenient or proper. To construct, acquire, extend, improve, equip, finance, maintain, manage, and/or operate, for itself or for others, any property or properties of any kind and/or to advise, aid and/or assist therein and for any of said purposes to furnish the services and advice of engineers, appraisers, supervisors, technical experts, technical advisers, auditors, executives and other assistants in any of such matters; and to aid in any manner the issuer of any stocks, bonds, debentures, evidences of indebtedness, obligations, warrants or securities of any kind at any time held by this corporation, and to do any and all lawful acts or things designated to protect, preserve, enhance or improve the value of any securities held by this corporation, and to use the funds, assets and/or credit of this corporation for any of said purposes. To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage, or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copy- rights, trade-marks and trade names, relating to or useful in connection with any business of this corporation. To organize or cause to be organized under the laws of the State of Indiana, or of any other state, territory or insular possession of the United States or of the District of Columbia or of any foreign country, a corporation or corporations for the purpose of accomplishing any or all of the objects for which this corporation is organized, and to dissolve, wind up, liquidate, merge or consolidate any such corporation or corporations, or to cause the same to be dissolved, wound up, liquidated, merged or consolidated. To borrow money; to draw, make, accept, endorse, transfer, assign, execute, and issue bonds, debentures, promissory notes, and other evidences of indebtedness, and for the purpose of securing any of its obligations or contracts to convey, transfer, assign, deliver, mortgage and/or pledge all or any part of the property or assets at any time owned or held by this corporation, as may be permitted by law. To enter into and make, and perform and carry out contracts of any kind and description made for any lawful purpose, without limit as to amount, with any person, firm, association or corporation, either public or private, or with any territory or government or agency thereof. To acquire, and to take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which this corporation is authorized to carry on, and in connection therewith, to acquire the good-will and all or any of the assets and to assume or otherwise provide for all or any of the liabilities of any such business. To do all and everything necessary, suitable and proper for the accomplishment of any of the purposes or the attainment of any of the objects or the furtherance of any of the powers herein before set forth, either alone or in association with other corporations, firms or individuals, and to do every other act or acts, thing or things, incident or appurtenant to or growing out of or connected with the aforesaid business or powers or any part or parts thereof, provided the same be not inconsistent with the laws under which this corporation is organized. To have one or more offices and to conduct all or any part of its operations and business without restriction or limit as to amount in the State of Indiana or in any or all other States, territories, districts, colonies and dependencies of the United States of America and in any or all foreign countries; and to acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, lease, sell, assign, transfer, exchange, mortgage, pledge or otherwise dispose of, or turn to account, and convey, real and personal property of every kind and nature, and rights or privileges therein, in the State of Indiana and in any or all other states, territories, districts, colonies and dependencies of the United States of America and in any or all foreign countries, subject to the laws of such states, territories, districts, colonies, dependencies and countries. The foregoing clauses shall be construed both as objects and powers; and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation. 3. The period during which it is to continue as a corporation is perpetual years. 4. The post office address of its principal office is 409 North Jefferson Street, Madison (City) Jefferson (County) Indiana (State). The name of its resident agent is Joseph M. Cooper. The post office address of its resident agent is 409 North Jefferson Street, Madison (City) Jefferson (County) Indiana (State). 5. The total number of shares into which its authorized Capital Stock is to be divided is Ten Thousand (10,000) consisting of shares as follows: No Shares having a par value. 10,000 Shares having no par value. (APPROVED BY SHAREHOLDERS MAY 2, 1951) Said shares having no par value may be issued by the corporation for such an amount of consideration as may be fixed by the board of directors thereof. 6. (If the shares are to be divided into classes or kinds the designations of the different classes, the number and par value, if any, of the shares of each class, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each class, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each class by resolution or resolutions adopted prior to the issuance of any of the shares of such class; and, if the shares of any class are to be issuable in series, descriptions of the several series, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each series, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each series by resolution or resolutions adopted prior to the issuance of any of the shares of such series.) Indicate here: None. 7. (If the shares are to be divided into classes or kinds, a statement of the voting rights and powers, if any, of the shares of each class, and of each series if the shares of any class are to be issuable in series, including the extent, if any, to which the shares of each such class and series shall be entitled to vote on questions of merger, consolidation and the sale of all or of substantially all of the assets of the corporation). Indicate here: None. 8. The amount of paid in capital with which this corporation will begin business is $1,000.00. 9. The Board of Directors shall consist of no more than nine (9) persons, the exact number of Directors to be specified from time to time by the by-laws, at not less than three (3) nor more than nine (9). If and whenever the by-laws do not contain a provision specifying the number of Directors the number shall be three (3). Name Street City County State H.C. Blackwell 4th & Main Sts., Cincinnati, Hamilton, Ohio Polk Laffoon 4th & Main Sts., Cincinnati, Hamilton, Ohio Geo. R. Brenner 4th & Main Sts., Cincinnati, Hamilton, Ohio E. S. Fields 4th & Main Sts., Cincinnati, Hamilton, Ohio L. K. Langdon 4th & Main Sts., Cincinnati, Hamilton, Ohio 11. The names and post office address of the incorporators are as follows: Name Street City County State Edward J. Boleman #1510 Merchants Indianapolis, Marion, Indiana Bank Bldg. Eileen M. Scanlon #1510 Merchants Indianapolis, Marion, Indiana Bank Bldg. Herman L. McCray #1510 Merchants Indianapolis, Marion, Indiana Bank Bldg. 12. (Any other provisions, consistent with the laws of this state, for the regulation of the business and conduct of the affairs of the corporation, and creating, defining, limiting or regulating the powers of the corporation, of the directors or of the shareholders or any class or classes of shareholders.) Indicate here: (1) All meetings of the shareholders and board of directors may be held outside the State of Indiana at such place or places as the by-laws shall provide. (2) The corporation reserves the rights to amend, alter, change or repeal any provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders, directors and officers herein are granted subject to this reservation. Edward J. Boleman 1510 Merchants Bank Bldg., Indianapolis Eileen M. Scanlon 1510 Merchants Bank Bldg., Indianapolis Herman L. McCray 1510 Merchants Bank Bldg., Indianapolis. STATE OF INDIANA SS: COUNTY OF MARION Before me, Beryl Smith, a Notary Public in and for said County and State, personally appeared Edward J. Boleman, Eileen M. Scanlon, and Herman L. McCray, and severally acknowledged the execution of the foregoing articles of incorporation. (Notarial Seal) Witness my hand and notarial seal this 25th day of March 1930. /s/ Beryl Smith Beryl Smith, Notary Public. My commission expires May 23, 1931. STATE OF INDIANA OFFICE OF THE SECRETARY OF STATE Otto G. Fifield, Secretary of State To Whom These Presents Come, Greeting: Whereas, there has been presented to me at this office Articles of Incorporation in triplicate for Miami Power Corporation showing capital stock as follows: 1,000 shares having no par value. Said Articles of Incorporation having been prepared and signed in accordance with "An Act concerning domestic and foreign corporations for profit, providing penalties for the violation hereof, and repealing all laws or parts of laws in conflict herewith," approved March 16, 1929, and Acts supplemental thereto. Whereas, upon due examination, I find that they conform to law: Now, therefore, I hereby certify that I have this day endorsed my approval upon the triplicate copies of Articles so presented, and, having received the fees required by law, in the sum of $11.50, having filed one copy of the Articles in this office and returned two copies bearing the endorsement of my approval to the incorporators of their representatives. In Witness Whereof, I have hereunto set my hand and (State Seal) affixed the seal of the State of Indianapolis, this 25th day of March, 1930. Otto G. Fifield, Secretary of State. Charles E. Dare, Deputy. EX-99.B.16 9 BY-LAWS OF MIAMI POWER CORPORATION ARTICLE I Offices Section 1. Offices. The registered office of the Corporation shall be in the City of Lawrenceburg, County of Dearborn, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. Section 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. Section 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than four (4) persons nor more than nine (9), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days' written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fees as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall keep in safe custody the seal of the Corporation, and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. Section 2. Basis. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. Section 3. Authorized. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 4. Before Final Disposition of Proceedings. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. Section 5. Judicial Order. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. Section 6. Procedure for Determining Amount. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or 9 (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. Section 7. Officers, Employees, or Agents. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. Section 9. Remedy Not Exclusive of Other Rights. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. B. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceed- ing thirty (30) days preceding the date of any meeting of share- holders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal Section 1. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Indiana." ARTICLE XII Amendment Section 1. Amendment. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99.B.17 10 ARTICLES OF INCORPORATION OF THE WEST HARRISON GAS AND ELECTRIC COMPANY (Formerly: West Harrison Electric and Water Company, Inc.) WITH ALL AMENDMENTS THROUGH DECEMBER 21, 1966 ARTICLES OF INCORPORATION THE WEST HARRISON GAS AND ELECTRIC COMPANY Incorporated August 11, 1942. Filed with Secretary of State of Indiana August 19, 1942. Recorded January 19, 1943 - Marion County, Indiana. PURPOSE Formed for purpose of acquiring, owning and operating or selling and disposing of an electric light and power plant and water works in West Harrison, Indiana, etc. PERIOD OF INCORPORATION 50 Years. NO. OF SHARES AUTHORIZED 2,000 shares of par value of $10.00 ARTICLES OF INCORPORATION OF THE WEST HARRISON GAS AND ELECTRIC COMPANY The undersigned, being three or more natural persons of lawful age, at least a majority of whom are citizens of the United States, do hereby adopt the following articles of incorporation, representing beforehand to the Secretary of State of the State of Indiana and all persons whom it may concern, that subscription lists for subscriptions to the shares of the capital stock of the above named corporation for which certificates of incorporation is hereby applied for, have heretofore been opened in accordance with law and that subscriptions to the shares of the corporation have been obtained in an amount not less than One Thousand ($1,000) Dollars. Be it further remembered that the following Articles of Incorporation and all matters heretofore done or hereafter to be done are in accordance with "An Act concerning domestic and foreign corporations for profit, providing penalties for the violation hereof, and repealing all laws or parts of laws in conflict herewith," approved March 16, 1929, and all acts amendatory thereof and supplemental thereto. 1. The name of the corporation shall be West Harrison Gas and Electric Company. 2. The purpose or purposes for which it is formed are as follows: Said Corporation is formed for the purpose of acquiring, owning and operating or selling and disposing of, a gas, electric light and power plant and water works in the State of Indiana, including all franchises, rights, contracts and property, real, personal and mixed, and assets of every kind and description pertaining to the same, and to engage in the business of producing, manufacturing, purchasing, selling and distributing gas, electric light and power and water in the State of Indiana, for heating, lighting, domestic, commercial, industrial and power uses and purposes, and other business incidental thereto, and to acquire and hold, any and all real estate necessary or convenient for said purposes, and to dispose of the same, and to acquire, manage and conduct said business in any and all its departments, and to do any and all other proper and necessary things in and about the premises, for carrying out the purposes of said Company as set forth above, and to borrow money whenever necessary or required, and to secure the same in any lawful manner deemed proper and necessary by said Company in its interests. 3. The duration of the period during which it is to continue as a corporation is perpetual. 4. The post office address of its principal office is 1511 Merchants Bank Bldg., Indianapolis, Marion County, Indiana. The name of its resident agent is Jacob S. White The post office address of its resident agent is 1511 Merchants Bank Building, Indianapolis, Marion County, Indiana. 5. The total number of shares into which its authorized capital stock is to be divided is Ten Thousand consisting of shares as follows: 10,000 shares having a par value of $10.00 6. (If the shares are to be divided into classes or kinds the designations of the different classes, the number and par value, if any, of the shares of each class, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each class, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each class by resolution or resolutions adopted prior to the issuance of any of the shares of such class; and, if the shares of any class are to be issuable in series, descriptions of the several series, and either (a) a statement of the relative rights, preferences, limitations and restrictions of each series, or (b) a provision expressly vesting authority in the board of directors, subject to such restrictions as may be provided, to determine the relative rights, preferences, limitations and restrictions (other than voting rights) of each series by resolution or resolutions adopted prior to the issuance of any of the shares of such series.) Indicate here: None 7. (If the shares are to be divided into classes or kinds, a statement of the voting rights and powers, if any, of the shares of each class, and of each series if the shares of any class are to be issuable in series, including the extent, if any, to which the shares of each such class and series shall be entitled to vote on question of merger, consolidation and the sale of all or of substantially all of the assets of the corporation.) Indicate here: None 8. The amount of paid in capital with which this corporation will begin business is $500.00 (This must not be less than $500.00) 9. The Board of Directors shall consist of no more than nine (9) persons, the exact number of Directors to be specified from time to time by the by-laws at not less than three(3) nor more than nine (9). If and whenever the by-laws do not contain a provision specifying the number of Directors the number shall be three (3). 10. The names and addresses of the first board of directors are as follows: H.C. Blackwell 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. G. F. Brenner 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. C. G. Eichelberger 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. Polk Laffoon 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. A. C. Moorhaus 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. 11. The names and post office address of the incorporators are as follows: Allen C. Strunk 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. Esther McCormick 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. Floyd C. Williams 4th & Main Sts., Cincinnati, Hamilton Co., Ohio. 12. (Any other provisions, consistent with the laws of this state, for the regulation of the business and conduct of the affairs of the corporation, and creating, defining, limiting or regulating the powers of the corporation, of the directors or of the shareholders or any class or classes of shareholders. Indicate here: None INCORPORATORS SIGN HERE /s/ Allen C. Strunk Allen C. Strunk /s/ Esther McCormick Esther McCormick /s/ Floyd C. Williams Floyd C. Williams STATE OF OHIO) COUNTY OF HAMILTON) SS Before me Stella Hufnagel, a Notary Public in and for said County and State, personally appeared /s/ Allen C. Strunk Allen C. Strunk /s/ Esther McCormick Esther McCormick /s/ Floyd C. Williams Floyd C. Williams (Seal) and severally acknowledged the execution of the foregoing articles of incorporation. WITNESS my hand and notarial seal this 11th day of August, 1942 /s/ Stella Hufnagel Stella Hufnagel Notary Public. Recorded at 8:35 AM Marion County Jan. 19, 1943 My Commission expires Mar. 11, 1945 (Articles of incorporation must be prepared and signed in triplicate in the form prescribed by the Secretary of State by all of the incorporators and acknowledged by at least three of them before a Notary Public, and shall be presented in triplicate to the Secretary of State at his office accompanied by the fees prescribed by law.) Received for Record Jan. 19, 1943 and recorded in Record 338,Page 519 Recorded Marion County. Approved and filed Aug. 19, 1942 /s/ Maurice G. Robinson Maurice G. Robinson Secretary of State of Indiana 1641 EX-99.B.18 11 BY-LAWS OF THE WEST HARRISON GAS AND ELECTRIC COMPANY ARTICLE I Offices Section 1. Offices. The registered office of the Corporation shall be in the City of Lawrenceburg, County of Dearborn, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. Section 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. Section 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the Agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than four (4) persons nor more than nine (9), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana), for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meeting shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fee as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b). Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. Section 2. Basis. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. Section 3. Authorized. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 4. Before Final Disposition of Proceedings. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. Section 5. Judicial Order. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. Section 6. Procedure for Determining Amount. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. Section 7. Officers, Employees, or Agents. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. Section 9. Remedy Not Exclusive of Other Rights. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. B. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding thirty (30) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Amendment Section 1. Amendment. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99.B.19 12 AMENDED AND RESTATED ARTICLES OF INCORPORATION OF LAWRENCEBURG GAS COMPANY ARTICLE 1 Identification Section 1.01. Name. The name of the Corporation is LAWRENCEBURG GAS COMPANY (the "Corporation"). ARTICLE 2 Purpose and Powers Section 2.01. Purpose. The purpose for which the Corporation is formed is the transaction of any or all lawful business for which corporations may be incorporated under the Indiana Business Corporation Law, as the same may, from time to time, be amended (the "Act"). Section 2.02. Powers. The Corporation shall have the same power as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation all the powers specifically enumerated in the Act. ARTICLE 3 Registered Office and Registered Agent Section 3.01. Registered Office. The street address of the registered office of the Corporation is: 230 West High Street Lawrenceburg, Indiana 47025 Section 3.02. Registered Agent. The name and post office address of the Corporation's Registered Agent are: The Cincinnati Gas & Electric Company 230 West High Street Lawrenceburg, Indiana 47025 ARTICLE 4 Terms of Shares Section 4.01. Amount. The total number of shares that the Corporation shall have authority to issue is eleven thousand (11,000) shares. Section 4.02. Designations of Classes and Relative Rights of Shares. All shares of the Corporation shall be of one class and shall be known as shares of Common Stock (the "Shares"). All Shares shall have the same relative rights, preferences and limitations. Section 4.03. Issuance of Shares. The Board of Directors of the Corporation (the "Board") has authority to authorize and direct the issuance by the Corporation of Shares at such times, in such amounts, to such persons, for such considerations and upon such terms and conditions as it may, from time to time, determine, subject only to the restrictions, limitations, conditions and requirements imposed by the Act, other applicable laws and these Articles of Incorporation, as the same may, from time to time, be otherwise amended (the "Articles"). Section 4.04. Voting Rights. Each holder of Shares shall have the right, at every Shareholders' meeting, to one vote for each such Share standing in his name on the books of the Corporation, except as otherwise provided in the Act. Section 4.05. Distributions Upon Shares. The Board has authority to authorize and direct the payment of dividends and the making of other distributions by the Corporation in respect of the issued and outstanding Shares at such times, in such amounts and forms, from such sources and upon such terms and conditions as it may, from time to time, determine, subject only to the restrictions, limitations, conditions and requirements imposed by the Act, other applicable laws, and the Articles. Section 4.06. Acquisition of Shares. The Board has authority to authorize and direct the acquisition by the Corporation of the issued and outstanding Shares at such times, in such amounts, from such persons, for such considerations, from such sources and upon such terms and conditions as it may, from time to time, determine, subject only to the restrictions, limitations, conditions and requirements imposed by the Act, other applicable laws and the Articles. Section 4.07. Record Ownership of Shares or Rights. The Corporation, to the extent permitted by law, shall be entitled to treat the person in whose name any Share or any right of the Corporation (a "Right") is registered on the books of the Corporation as the owner thereof, for all purposes, and shall not be bound to recognize any equitable or other claim to, or interest in, such Share or Right on the part of any other person, whether or not the Corporation shall have notice thereof. ARTICLE 5 Directors Section 5.01. Number. The number of members of the Board of the Corporation shall be specified in, or fixed in accordance with, the By-Laws of the Corporation, as the same may, from time to time, be amended (the "By-Laws"). If and whenever the By-Laws do not contain a provision specifying the number of members of the Board, the number shall be three (3). ARTICLE 6 Provisions for Regulation of Business and Conduct of Affairs of Corporation Section 6.01. Location of Meetings. Meetings of the shareholders of the Corporation (the "Shareholders") or the Board may be held at such place, within or without the State of Indiana, as may be specified in the respective notices or waivers of notice thereof. Section 6.02. By-Laws. The Board shall have power, without the assent or vote of the Shareholders, to make, alter, amend or repeal the By-Laws, by the affirmative vote of a number of Directors equal to a majority of the number of all Directors who are elected and qualified at the time of such action. Section 6.03. Direction of Purposes and Exercise of Powers by Directors. The Board, subject to any specific limitations or restrictions imposed by the Act or the Articles, shall direct the carrying out of the purpose and exercise the powers of the Corporation, without previous authorization or subsequent approval by the Shareholders. Section 6.04. Amendments of Articles of Incorporation. The Corporation reserves the right to amend, alter, change or repeal any provision contained in the Articles or in any amendment hereto, or to add any provision to the Articles or to any amendment hereto, in any manner now or hereafter prescribed or permitted by the Act or by any other applicable statute of the State of Indiana; and all rights conferred upon the Shareholders in the Articles are granted subject to this reservation. No Shareholder has a vested property right resulting from any provision in the Articles, or authorized to be in the By-Laws by the Act or the Articles, including without limitation provisions relating to management, control, capital structure, dividend entitlement, or purpose or duration of the Corporation. EX-99.B.20 13 BY-LAWS OF LAWRENCEBURG GAS COMPANY ARTICLE I Offices Section 1. Offices. The registered office of the Corporation shall be in the City of Lawrenceburg, County of Dearborn, State of Indiana. The Corporation may establish an office in the City of Cincinnati, State of Ohio, and offices at such other places as the Board of Directors may from time to time or the business of the Corporation may require. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the State of Indiana, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fourth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days before the date of the meeting. Section 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder if the waiver sets forth, in reasonable detail, the purpose for which the meeting is called, and time and place thereof. Attendance at any meeting, in person or by proxy, shall constitute a waiver of notice of such meeting. Section 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless said instrument provides for a longer period. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of Directors (who need not be shareholders) consisting of not less than four (4) persons nor more than nine (9), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Indiana), for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Indiana), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meeting shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than Directors who are paid salaries by the Corporation or by The Cincinnati Gas & Electric Company or by any of its affiliates) shall be entitled to receive for each meeting of the Board of Directors which he shall attend, such fee as the Board of Directors shall from time to time determine. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall keep in safe custody the seal of the Corporation, and, whenever authorized by the Board of Directors or the Executive Committee, affix the seal to any instrument requiring the same. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of such transaction. B. "Director" means an individual who is or was a director of the Corporation or an individual who while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. Director includes the estate or personal representative of a director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a director, the office of director in the Corporation; and (2) When used with respect to an individual other than a director, as contemplated in Section 3 of this Article, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal. Section 2. Basis. A. The Corporation shall indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) The individual's conduct was in good faith; and (2) The individual reasonably believed: (a) In the case of conduct in the individual's official capacity with the Corporation, that the individual's conduct was in its best interests; and (b) In all other cases, that the individual's conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, the individual either: (a) Had reasonable cause to believe the individual's conduct was lawful; or (b) Had no reasonable cause to believe the individual's conduct was unlawful. B. A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (A)(2)(b). C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this Section. Section 3. Authorized. The Corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the Corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 4. Before Final Disposition of Proceedings. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The director furnishes the Corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in Section 2 of this Article; (2) The director furnishes the Corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 6 of this Article. Section 5. Judicial Order. A director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: (1) The director is entitled to mandatory indemnification under Section 3 of this Article, in which case the court shall also order the Corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or (2) The director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in Section 2 of this Article. Section 6. Procedure for Determining Amount. A. The Corporation may not indemnify a director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in Section 2 of this Article. B. The determination shall be made by any one of the following procedures: (1) By the Board of Directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding; or (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subdivision (1) or (2); or (b) If a quorum of the Board of Directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full Board of Directors (in which selection directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) to select counsel. Section 7. Officers, Employees, or Agents. A. An officer of the Corporation, whether or not a director, is entitled to mandatory indemnification under Section 3 of this Article, and is entitled to apply for court-ordered indemnification under Section 5 of this Article, in each case to the same extent as the director. B. The Corporation shall indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation, whether or not a director, to the same extent as to a director. C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, general or specific action of its Board of Directors, or contract. Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, employee, or agent, whether or not the Corporation would have power to indemnify the individual against the same liability under Section 2 or 3 of this Article. Section 9. Remedy Not Exclusive of Other Rights. A. The indemnification and advance for expenses provided for or authorized by this Article does not exclude any other rights to indemnification and advance for expenses that a person may have under: (1) The Corporation's Articles of Incorporation; (2) A resolution of the Board of Directors or of the shareholders; or (3) Any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding. B. If the Articles of Incorporation, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the Articles, resolution of the Board of Directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses. C. This Article does not limit a Corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding thirty (30) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distribution is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal Section 1. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation and Lawrenceburg, Indiana. ARTICLE XII Amendment Section 1. Amendment. The Board of Directors, by the affirmative vote of a majority thereof, may at any regular or upon notice at any special meeting, alter or amend these By-Laws, except as to such matters as are required to be regulated by the Articles of Incorporation of the Corporation. EX-99.B.21 14 TRI-STATE IMPROVEMENT COMPANY ____________________ ARTICLES OF INCORPORATION ____________________ JANUARY 24, 1964 ARTICLES OF INCORPORATION OF TRI-STATE IMPROVEMENT COMPANY The undersigned, all of whom are citizens of the United States, desiring to form a corporation for profit, under the General Corporation Law of the State of Ohio, do hereby certify: FIRST: The name of the corporation shall be Tri-State Improvement Company SECOND: The principal office of said corporation is to be located in the City of Cincinnati, Hamilton County, Ohio THIRD: The purposes of said corporation are as follows: a. To acquire, hold, own, lease, option, develop, improve, manage, mortgage, pledge, sell, transfer, contract concerning, and in any manner dispose of and deal in and with real property, interests in real property, investments, securities, goods, wares, merchandise, and other personal property of any and every class and description and wherever situate, and doing any and all things necessary or incident thereto; b. To borrow money and issue, sell or pledge bonds, notes, bills of exchange debentures and other obligations and evidences of indebtedness, payable at a specified time or times, or payable upon the happening of a specified event or events, whether secured by mortgage, pledge or otherwise, or unsecured; c. To purchase, acquire, guarantee, hold and dispose of the shares, bonds and other evidences of indebtedness or contracts of any corporation, domestic or foreign; d. To acquire the good will, rights and property, and to undertake the whole or any part of the assets or liabilities of any person, firm, association or corporation; to pay for the same in cash, the stock of this corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business; e. To carry on any or all of its operations and businesses and to promote its objects within the State of Ohio, or elsewhere, without restriction as to place or amount; f. To do any and all of the things herein set forth to the same extent as natural person might or could do, and in any part of the world, as principals, agents, contractors, trustees, a member of a joint venture, or otherwise, alone or in company with others. FOURTH: The authorized number of shares of the corporation is One Thousand (1,000), all of which shall be Common Shares without par value. FIFTH: The amount of capital with which the corporation will begin business is Five Hundred Dollars ($500.00). IN WITNESS WHEREOF, we have hereunto subscribed our names this 9th day of January, 1964. /s/ Julius J. Heidacher Julius J. Heidacher /s/ C. D. McClanahan C. D. McClanahan /s/ Mabel Gillson Mabel Gillson STATE OF OHIO, COUNTY OF HAMILTON, SS: Personally appeared before me the undersigned, a Notary Public in and for the State of Ohio, this 9th day of January, 1964, the above-named Julius J. Heidacher, C. D. McClanahan, and Mabel Gillson, who each severally acknowledged the signing of the foregoing Articles of Incorporation to be his free act and deed for the uses and purposes therein mentioned. Witness my hand and official seal on the day and year last aforesaid. /s/ William J. Moran Notary Public WILLIAM J. MORAN, Attorney At Law Notary Public, State of Ohio My Commission has no Expiration Date Section 147.03 K.C. APPOINTMENT OF STATUTORY AGENT The undersigned, being a majority of the incorporators of Tri- State Improvement Company, hereby appoint C. D. McClanahan, a natural person resident in the county of which the corporation has its principal office, upon whom any process, notice or demand required or permitted by statute to be served upon the corporation may be served. His complete address is 1401 Enquirer Building, Cincinnati, Hamilton County, Ohio, 45202. /s/ Julius J. Heidacher Julius J. Heidacher /s/ C. D. McClanahan C. D. McClanahan /s/ Mabel Gillson Mabel Gillson Cincinnati, Ohio The 9th day of January, 1964. ACCEPTANCE OF APPPOINTMENT Tri-State Improvement Company Gentlemen: I hereby accept the foregoing appointment. /s/ C. D. McClanahan C. D. McClanahan EX-99.B.21 15 REGULATIONS OF TRI-STATE IMPROVEMENT COMPANY ARTICLE I Offices Section 1. Offices. The location of the Corporation's principal office shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The Corporation may, in addition to its principal office in the State of Ohio, establish and maintain an office or offices elsewhere in Ohio and in such other states and places as the Board of Directors may from time to time find necessary or desirable, at which the books, documents and papers of the Corporation may be kept. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the state of Ohio, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate twenty-five (25) percent of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 5. Waiver of Notice. Notice of the time, place and purpose of any meeting of shareholders may be waived by the written assent of every shareholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, present in person or by proxy at any meeting of the shareholders, unless otherwise specified by law, shall constitute a quorum. 1 If, however, at any meeting of the shareholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the shareholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice, other than by announcement at the meeting at which such adjournment is taken, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At each meeting of the shareholders, except as otherwise provided by statute or the Articles of Incorporation, every holder of record of stock entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date next preceding the day of the meeting. Cumulative voting shall be permitted only as expressly required by statute. At any meeting of shareholders, a list of shareholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then on the date of the meeting) shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. Except as otherwise provided by statute, all the corporate powers, business and property of the Corporation shall be exercised, conducted and controlled by a Board of five (5) Directors, who need not be shareholders. The directors shall be elected annually and each director shall continue in office until the annual meeting held next after his election, and until his successor shall have been elected and qualified. Any member of the Board of Directors may resign at any time by giving written notice to the President or to the Secretary of the Corporation. All vacancies occurring in the Board of Directors, may be filled by the remaining directors at any stated or special meeting. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly elected directors may meet forthwith (either within or without the State of Ohio) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at any reasonable time and place (either within or without the State of Ohio), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these Regulations. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting, at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month, or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution adopted by a majority of the whole board, designate annually three (3) or more of their number, to constitute an Executive Committee, and may delegate to such committee power to exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. Each member of the Executive Committee shall continue to be a member thereof only during the pleasure of a majority of the whole board. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. 3 Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two of the offices of Vice President, Secretary and Treasurer may be combined in one person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of Directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Indemnification of Directors, Officers, Employees, and Agents. (A) The Corporation shall indemnify or agree to indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (B) The Corporation shall indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any of the following: (1) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the court of common pleas, or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper. (2) Any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio Revised Code. (C) To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the foregoing paragraphs of this Article, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (D) Any indemnification under Paragraphs (A) and (B) of Section 1 of this Article, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such Paragraphs (A) and (B). Such determination shall be made as follows: (1) by a majority vote of a quorum consisting of directors of the indemnifying Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding; (2) if the quorum described in (D)(1) of this Section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years; (3) by the shareholders; or (4) by the court of common pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under (D)(1) of this Section or by independent legal counsel under (D)(2) of this Section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under (B) of this Section, and within 10 days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. Section 2. Advances for Litigation Expenses may be Made. Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, or agent in defending any action, suit, or proceeding referred to in Section 1 of this Article, may be paid by the Corporation as they are incurred in advance of the final disposition of the action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the Corporation. Section 3. Indemnification Nonexclusive. The indemnification provided by this Article shall not be exclusive of and shall be in addition to any other rights granted to those seeking indemnification under these Regulations, any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. Section 4. Indemnity Insurance. The Corporation may purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under this Section. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest. Section 5. Payments of Expenses Not Limited. The indemnification provided by Sections 1(A) and (B) of this Article does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to Sections 2, 3, and 4 of this Article. Sections 1(A) and (B) of this Article do not create any obligation to repay or return payments made by the Corporation pursuant to Sections 2, 3, or 4 of this Article. Section 6. Survival of Indemnification. As used in this Article, references to "Corporation" include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, or agent of such a constituent corporation, or is or was serving at the request of such constituent corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, shall stand in the same position under this Article with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding forty-five (45) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 4. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these Regulations to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these Regulations may be waived by the person entitled to such notice. ARTICLE XI Amendment Section 1. Amendment. These Regulations may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a two-thirds majority of the voting power on such proposal. EX-99.B.22 16 REGULATIONS OF TRI-STATE IMPROVEMENT COMPANY ARTICLE I Offices Section 1. Offices. The location of the Corporation's principal office shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The Corporation may, in addition to its principal office in the State of Ohio, establish and maintain an office or offices elsewhere in Ohio and in such other states and places as the Board of Directors may from time to time find necessary or desirable, at which the books, documents and papers of the Corporation may be kept. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the state of Ohio, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate twenty-five (25) percent of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 5. Waiver of Notice. Notice of the time, place and purpose of any meeting of shareholders may be waived by the written assent of every shareholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 6. Quorum. The holders of shares entitling them to exercise a majority of the voting power, present in person or by proxy at any meeting of the shareholders, unless otherwise specified by law, shall constitute a quorum. 1 If, however, at any meeting of the shareholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the shareholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice, other than by announcement at the meeting at which such adjournment is taken, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At each meeting of the shareholders, except as otherwise provided by statute or the Articles of Incorporation, every holder of record of stock entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date next preceding the day of the meeting. Cumulative voting shall be permitted only as expressly required by statute. At any meeting of shareholders, a list of shareholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then on the date of the meeting) shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. Except as otherwise provided by statute, all the corporate powers, business and property of the Corporation shall be exercised, conducted and controlled by a Board of five (5) Directors, who need not be shareholders. The directors shall be elected annually and each director shall continue in office until the annual meeting held next after his election, and until his successor shall have been elected and qualified. Any member of the Board of Directors may resign at any time by giving written notice to the President or to the Secretary of the Corporation. All vacancies occurring in the Board of Directors, may be filled by the remaining directors at any stated or special meeting. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly elected directors may meet forthwith (either within or without the State of Ohio) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at any reasonable time and place (either within or without the State of Ohio), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these Regulations. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting, at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month, or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution adopted by a majority of the whole board, designate annually three (3) or more of their number, to constitute an Executive Committee, and may delegate to such committee power to exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. Each member of the Executive Committee shall continue to be a member thereof only during the pleasure of a majority of the whole board. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. 3 Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two of the offices of Vice President, Secretary and Treasurer may be combined in one person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of Directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the powers of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Indemnification of Directors, Officers, Employees, and Agents. (A) The Corporation shall indemnify or agree to indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (B) The Corporation shall indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any of the following: (1) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the court of common pleas, or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper. (2) Any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Ohio Revised Code. (C) To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the foregoing paragraphs of this Article, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (D) Any indemnification under Paragraphs (A) and (B) of Section 1 of this Article, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such Paragraphs (A) and (B). Such determination shall be made as follows: (1) by a majority vote of a quorum consisting of directors of the indemnifying Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding; (2) if the quorum described in (D)(1) of this Section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years; (3) by the shareholders; or (4) by the court of common pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under (D)(1) of this Section or by independent legal counsel under (D)(2) of this Section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under (B) of this Section, and within 10 days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. Section 2. Advances for Litigation Expenses may be Made. Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, or agent in defending any action, suit, or proceeding referred to in Section 1 of this Article, may be paid by the Corporation as they are incurred in advance of the final disposition of the action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the Corporation. Section 3. Indemnification Nonexclusive. The indemnification provided by this Article shall not be exclusive of and shall be in addition to any other rights granted to those seeking indemnification under these Regulations, any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. Section 4. Indemnity Insurance. The Corporation may purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under this Section. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest. Section 5. Payments of Expenses Not Limited. The indemnification provided by Sections 1(A) and (B) of this Article does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to Sections 2, 3, and 4 of this Article. Sections 1(A) and (B) of this Article do not create any obligation to repay or return payments made by the Corporation pursuant to Sections 2, 3, or 4 of this Article. Section 6. Survival of Indemnification. As used in this Article, references to "Corporation" include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, or agent of such a constituent corporation, or is or was serving at the request of such constituent corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, shall stand in the same position under this Article with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding forty-five (45) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 4. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these Regulations to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these Regulations may be waived by the person entitled to such notice. ARTICLE XI Amendment Section 1. Amendment. These Regulations may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a two-thirds majority of the voting power on such proposal. EX-99.B.23 17 ARTICLES OF INCORPORATION OF KO TRANSMISSION COMPANY The undersigned, desiring to form a corporation for profit under Chapter 271B of the Kentucky Revised Statutes, does hereby state as follows: ARTICLE I. The name of the corporation shall be KO Transmission Company. ARTICLE II. The purposes for which the corporation is formed are: To engage in any lawful act or activity for which corporations for profit may be incorporated under Chapter 271B of the Kentucky Revised Statutes. ARTICLE III. The period of duration of the corporation shall be perpetual. ARTICLE IV. The street address of the corporation's registered office in the Commonwealth of Kentucky and the name of its registered agent at that office is: The Cincinnati Gas & Electric Company c/o The Union Light, Heat and Power Company 107 Brent Spence Square Covington, KY 41011 ARTICLE V. The mailing address of the corporation's principal office is: 139 East Fourth Street Cincinnati, OH 45202 ARTICLE VI. The number of shares which the corporation is authorized to have outstanding is one hundred (100) common shares, par value $1.00 per share. ARTICLE VII. No Director of the Corporation shall be personally liable to the Corporation for monetary damages for breach of his or her duties as a director, except to the extent required by Kentucky Revised Statutes Section 271B.2-020(2)(d) or any successor provision thereto. ARTICLE VIII. The name and mailing address of the incorporator is: James J. Mayer The Cincinnati Gas & Electric Company 139 East Fourth Street Cincinnati, OH 45202 IN WITNESS WHEREOF, the undersigned has hereunto subscribed his name on the 11th day of April, 1994. /s/ James J. Mayer James J. Mayer Incorporator EX-99.B.24 18 BY-LAWS OF KO TRANSMISSION COMPANY ARTICLE I Offices Section 1. Offices. The registered office of the Corpora- tion shall be located in the City of Covington, Commonwealth of Kentucky. The Corporation may establish branch offices and conduct and carry on business at such other places within or without the Commonwealth of Kentucky as the Board of Directors may from time to time fix or designate, and any business conducted or carried on at such other place or places shall be as binding and effectual as if transacted at the registered office of the Corporation. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders may be held either within or without the Commonwealth of Kentucky, at such place, time, and date designated by the Board of Directors, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days, and not more than forty (40) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold in the aggregate one-fifth of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, not less than ten (10) nor more than thirty-five (35) days after the receipt of said request. Section 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder at any time before or after the meeting. Section 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or repre- sented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his or her name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting or, if no date has been fixed, then at the date of the meeting. Cumulative voting shall be permitted only as expressly required by statute. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of four (4) Directors (who need not be shareholders), who shall be elected annually by the shareholders at the annual meeting. Each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by a majority vote of the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the Commonwealth of Kentucky) for the purpose of organization, the election of officers and the transaction of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the Commonwealth of Kentucky), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, or President, or may be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month, or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole board, designate annually three (3) of their number to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Treasurer, a Comptroller, and may consist of a Vice Chairman, a Chief Operating Officer, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, or one or more Assistant Comptrollers, all of whom shall be elected by the Board of Directors, and shall hold office for one year and until their successors are chosen and qualified. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause by the affirmative vote of a majority of the number of directors at any meeting of the Board of Directors. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. The Chairman of the Board. The Chairman of the Board shall be a director and shall preside at all meetings of the Board of Directors and, in the absence or inability to act of the Chief Executive Officer, meetings of shareholders and shall, subject to the board's direction and control, be the board's representative and medium of communication, and shall perform such other duties as may from time to time be assigned to the Chairman of the Board by the Board of Directors. The Chairman of the Board shall direct the long-term strategic planning process of the Corporation and shall also lend his or her expertise to such other officers as may be requested from time to time by such officers. The Chairman shall be a member of the Executive Committee. Section 4. The Vice Chairman. The Vice Chairman of the Board, if there be one, shall be a director and shall preside at meetings of the Board of Directors in the absence or inability to act of the Chairman of the Board or meetings of shareholders in the absence or inability to act of the Chief Executive Officer and the Chairman of the Board. The Vice Chairman shall perform such other duties as may from time to time be assigned to him or her by the Board of Directors. The Vice Chairman shall be a member of the Executive Committee. Section 5. The Chief Executive Officer. The Chief Executive Officer shall be a director and shall preside at all meetings of the shareholders, and, in the absence or inability to act of the Chairman of the Board and the Vice Chairman, at all meetings of the Board of Directors. The Chief Executive Officer shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his or her knowledge which the interests of the Corporation may require be brought to their notice. The Chief Executive Officer shall be the chairman of the Executive Committee and ex officio a member of all standing committees. Section 6. The Chief Operating Officer. The Chief Operating Officer of the Corporation, if there be one, shall have general and active management and direction of the affairs of the Corporation, shall have supervision of all departments and of all officers of the Corporation, shall see that the orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, and shall have the general powers and duties of supervision and management usually vested in the office of a Chief Operating Officer of a corporation. Unless otherwise provided, all corporate officers and functions shall report directly to the Chief Operating Officer, if there be one, or, if not, to the Chief Executive Officer. Section 7. The President. The President shall have such duties as may be delegated by the Board of Directors, Chief Executive Officer, or Chief Operating Officer. Section 8. The Vice Presidents. The Vice Presidents shall perform such duties as the Board of Directors shall from time to time require. In the absence or incapacity of the President, the Vice President designated by the Board of Directors or Executive Committee, Chief Executive Officer, Chief Operating Officer, or President shall exercise the powers and duties of the President. Section 9(a). The Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. The Secretary shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President. (b) Assistant Secretaries. At the request of the Secretary, or in his or her absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Secretary. Section 10(a). The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of all collections, receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors, Chief Executive Officer, Chief Operating Officer, or President, taking proper vouchers therefor, and shall render to the Chief Executive Officer, Chief Operating Officer, or President, and directors at all regular meetings of the board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his or her office and the restoration to the Corporation in the case of his or her death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his or her possession belonging to the Corporation. (b) Assistant Treasurers. At the request of the Treasurer, or in his or her absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Treasurer. Section 11(a). The Comptroller. The Comptroller shall have control over all accounts and records of the Corporation pertaining to moneys, properties, materials and supplies. He or she shall have executive direction over the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He or she shall have such other powers and duties as are incident to the office of Comptroller of a corporation and shall be subject at all times to the direction and control of the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, and a Vice President. (b) Assistant Comptrollers. At the request of the Comptroller, or in his or her absence or inability to act, the Assistant Comptroller or, if there be more than one, the Assistant Comptroller designated by the Comptroller, shall perform the duties of the Comptroller and when so acting shall have all the power of and be subject to all the restrictions of the Comptroller. The Assistant Comptrollers shall perform such other duties as may from time to time be assigned to them by the Board of Directors, Chief Executive Officer, Chief Operating Officer, President, or Comptroller. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. B. "Director" means an individual who is or was a Director of the Corporation or an individual who, while a Director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A Director shall be considered to be serving an employee benefit plan at the Corporation's request if his or her duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a Director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a Director, the office of Director in the Corporation; and (2) When used with respect to an individual other than a Director, as contemplated in Section 6, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" shall not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise. F. Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal. Section 2. Indemnification. A. Except as provided in subsection (D) of this Section, the Corporation shall indemnify an individual made a party to a proceeding because he or she is or was a Director against liability incurred in the proceeding if: (1) He or she conducted himself or herself in good faith; and (2) He or she reasonably believed: (a) In the case of conduct in his or her official capacity with the Corporation, that his or her conduct was in its best interest; and (b) In all other cases, that his or her conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. B. A Director's conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in and beneficiaries of the plan shall be conduct that satisfies the requirement of subsection A(2)(b) of this Section. C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contender or its equivalent shall not be, of itself, determinative that the Director did not meet the standard of conduct described in this Section. D. The Corporation may not indemnify a Director under this Section: (1) In connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation; or (2) In connection with any other proceeding charging improper personal benefit to him or her, whether or not involving action in his or her official capacity, in which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her. E. Indemnification permitted under this Section in connection with a proceeding by or in the right of the Corporation shall be limited to reasonable expenses incurred in connection with the proceeding. Section 3. Mandatory Indemnification. Unless limited by the Articles of Incorporation, the Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she is or was a Director of the Corporation against reasonable expenses incurred by him or her in connection with the proceeding. Section 4. Advance for Expenses. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a Director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The Director furnishes the Corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in Section 2; (2) The Director furnishes the Corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. B. The undertaking required by subsection A(2) of this Section shall be an unlimited general obligation of the Director but shall not be required to be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 5. Section 5. Determination and Authorization of Indemnification. A. The Corporation shall not indemnify a Director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because he or she has met the standard of conduct set forth in Section 2. B. The determination shall be made: (1) By the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the proceeding; (2) If a quorum cannot be obtained under subsection B(1) of this Section, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding; (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subsection B(1) and (2) of this Section; or (b) If quorum of the Board of Directors cannot be obtained under subsection B(1) of this Section and a committee cannot be designated under subsection B(2) of this Section, selected by majority vote of the full Board of Directors (in which selection Directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of Directors who are at the time parties to the proceeding shall not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) of this Section to select counsel. Section 6. Indemnification of Officers, Employees, and Agents. Unless the Corporation's Articles of Incorporation provide otherwise: A. An officer of the Corporation who is not a Director shall be entitled to mandatory indemnification under Section 3, and is entitled to apply for court-ordered indemnification under the Kentucky Business Corporation Act, in each case to the same extent as a Director; B. The Corporation may indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation who is not a Director to the same extent as to a Director; and C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a Director to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, By-Laws, general or specific action of the Board of Directors, or contract. Section 7. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a Director, officer, employee, or agent of the Corporation, or who, while a Director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a Director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him or her against the same liability under Section 2 or Section 3. Section 8. Application of this Article. A. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the By-Laws, any agreement, vote of shareholders or disinterested Directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. B. This Article shall not limit the Corporation's power to pay or reimburse expenses incurred by a Director in connection with his or her appearance as a witness at a proceeding at a time when he or she has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by (1) either the Chairman, Chief Executive Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation or respective Transfer Agents designated to transfer each class of stock, and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding forty (40) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate, a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors (or the Executive Committee, if there be one and the authority to declare dividends is delegated to the Executive Committee by the Board of Directors) and paid in cash, shares, or other property out of the annual net income to the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statute and subject to the conditions and limitations imposed by the Articles of Incorporation. No dividends shall be paid to the holders of any class of shares in violation of the rights of the holders of any other class of shares. Before payment of any dividends or making distribution of any profits, there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors (or Executive Committee, if there be one and the authority to declare dividends or make distributions is delegated to the Executive Committee) from time to time in its absolute discretion thinks proper as a reserve fund for any purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the Chairman, Vice Chairman, Chief Executive Officer, Chief Operating Officer, President, or a Vice President, and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telecopy, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Amendment Section 1. Amendment. These By-Laws may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a two-thirds majority of the voting power on such proposal. EX-99.B.25 19 CERTIFICATE OF INCORPORATION OF Cinergy Investments, Inc. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of the State of Delaware, certifies: FIRST: The name of the corporation is Cinergy Investments, Inc. SECOND: The address of the corporation's registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one hundred (100) shares of common stock, par value one cent ($.01) per share. FIFTH: The name and mailing address of the incorporator is Rodrigo J. Howard, 1 Chase Manhattan Plaza, 55th Floor, New York, New York 10005. SIXTH: A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of the filing of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. No repeal or modification of this Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such repeal or modification. SEVENTH: The directors shall have power to make, alter or repeal by-laws, except as may otherwise be provided in the by- laws. EIGHTH: Elections of directors need not be by written ballot, except as may otherwise be provided in the by-laws. WITNESS my signature this 24th day of October, 1994. Sole Incorporator EX-99.B.26 20 BY-LAWS OF Cinergy Investments, Inc. ARTICLE I Stockholders Section 1.1 Annual Meeting. Except as otherwise provided in Section 1.9 of these By-Laws, an annual meeting of stockholders of the Corporation for the election of directors and for the transaction of any other proper business shall be held at such time and date in each year as the Board of Directors may determine. The annual meeting in each year shall be held at such place within or without the State of Delaware as may be fixed by the Board of Directors. Section 1.2 Special Meetings. A special meeting of the holders of stock of the Corporation entitled to vote on any business to be considered at any such meeting may be called by the Chairman of the Board, if any, or the President or any Vice President, and shall be called by the Chairman of the Board, if any, or the President or the Secretary when directed to do so by resolution of the Board of Directors or at the written request of directors representing a majority of the whole Board of Directors. Any such request shall state the purpose or purposes of the proposed meeting. Section 1.3 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, unless notice is waived in writing by all stockholders entitled to vote at the meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, and except as to any stockholder duly waiving notice, the written notice of any meeting shall be given personally or by mail, not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at his or her address as it appears on the records of the Corporation. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If, however, the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 1.4 Quorum. Except as otherwise provided by law or by the Certificate of Incorporation or by these By-Laws in respect of the vote required for a specified action, at any meeting of stockholders the holders of a majority of the outstanding stock entitled to vote thereat, either present or represented by proxy, shall constitute a quorum for the transaction of any business, but the stockholders present, although less than a quorum, may adjourn the meeting to another time or place and, except as provided in the last paragraph of Section 1.3 of these By-Laws, notice need not be given of the adjourned meeting. Section 1.5 Voting. Whenever directors are to be elected at a meeting, they shall be elected by a plurality of the votes cast at the meeting by the holders of stock entitled to vote. Whenever any corporate action, other than the election of directors, is to be taken by vote of stockholders at a meeting, it shall, except as otherwise required by law or by the Certificate of Incorporation or by these By-Laws, be authorized by a majority of the votes cast at the meeting by the holders of stock entitled to vote thereon. Except as otherwise provided by law, or by the Certificate of Incorporation, each holder of record of stock of the Corporation entitled to vote on any matter at any meeting of stockholders shall be entitled to one vote for each share of such stock standing in the name of such holder on the stock ledger of the Corporation on the record date for the determination of the stockholders entitled to vote at the meeting. Upon the demand of any stockholder entitled to vote, the vote for directors or the vote on any other matter at a meeting shall be by written ballot, but otherwise the method of voting and the manner in which votes are counted shall be discretionary with the presiding officer at the meeting. Section 1.6 Presiding Officer and Secretary. At every meeting of stockholders the Chairman of the Board, or in his or her absence (or if there be none) the President, or in his or her absence a Vice President, or, if none be present, the appointee of the meeting, shall preside. The Secretary, or in his or her absence an Assistant Secretary, or if none be present, the appointee of the presiding officer of the meeting, shall act as secretary of the meeting. Section 1.7 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Every proxy shall be signed by the stockholder or by his duly authorized attorney. Section 1.8 List of Stockholders. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. Section 1.9 Written Consent of Stockholders in Lieu of Meeting. Any action required by statute to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt written notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any such written consent may be given by one or any number of substantially concurrent written instruments of substantially similar tenor signed by such stockholders, in person or by attorney or proxy duly appointed in writing, and filed with the Secretary or an Assistant Secretary of the Corporation. Any such written consent shall be effective as of the effective date thereof as specified therein, provided that such date is not more than sixty days prior to the date such written consent is filed as aforesaid, or, if no such date is so specified, on the date such written consent is filed as aforesaid. ARTICLE II Directors Section 2.1 Number of Directors. The Board of Directors shall consist of 2 directors until changed as provided in this Section. The number of directors may be changed at any time and from time to time by vote at a meeting or by written consent of the holders of stock entitled to vote on the election of directors, or by a resolution of the Board of Directors passed by a majority of the whole Board of Directors, except that no decrease shall shorten the term of any incumbent director unless such director is specifically removed pursuant to Section 2.5 of these By-Laws at the time of such decrease. Section 2.2 Election and Term of Directors. Directors shall be elected annually, by election at the annual meeting of stockholders or by written consent of the holders of stock entitled to vote thereon in lieu of such meeting. If the annual election of directors is not held on the date designated therefor, the directors shall cause such election to be held as soon thereafter as convenient. Each director shall hold office from the time of his or her election and qualification until his successor is elected and qualified or until his or her earlier resignation, or removal. Section 2.3 Vacancies and Newly Created Directorships. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by election at a meeting of stockholders or by written consent of the holders of stock entitled to vote thereon in lieu of a meeting. Except as otherwise provided by law, vacancies and such newly created directorships may also be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Section 2.4 Resignation. Any director may resign at any time upon written notice to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof, and the acceptance of such resignation, unless required by the terms thereof, shall not be necessary to make such resignation effective. Section 2.5 Removal. Any or all of the directors may be removed at any time, with or without cause, by vote at a meeting or by written consent of the holders of stock entitled to vote on the election of directors. Section 2.6 Meetings. Meetings of the Board of Directors, regular or special, may be held at any place within or without the State of Delaware. Members of the Board of Directors, or of any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting. An annual meeting of the Board of Directors shall be held after each annual election of directors. If such election occurs at an annual meeting of stockholders, the annual meeting of the Board of Directors shall be held at the same place and immediately following such meeting of stockholders, and no notice thereof need be given. If an annual election of directors occurs by written consent in lieu of the annual meeting of stockholders, the annual meeting of the Board of Directors shall take place as soon after such written consent is duly filed with the Corporation as is practicable, either at the next regular meeting of the Board of Directors or at a special meeting. The Board of Directors may fix times and places for regular meetings of the Board and no notice of such meetings need be given. A special meeting of the Board of Directors shall be held whenever called by the Chairman of the Board, if any, or by the President or by at least one-third of the directors for the time being in office, at such time and place as shall be specified in the notice or waiver thereof. Notice of each special meeting shall be given by the Secretary or by a person calling the meeting to each director by mailing the same, postage prepaid, not later than the second day before the meeting, or personally or by telegraphing or telephoning the same not later than the day before the meeting. Section 2.7 Quorum and Voting. A majority of the total number of directors shall constitute a quorum for the transaction of business, but, if there be less than a quorum at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time, and no further notice thereof need be given other than announcement at the meeting which shall be so adjourned. Except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 2.8 Written Consent of Directors in Lieu of a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 2.9 Compensation. Directors may receive compensation for services to the Corporation in their capacities as directors or otherwise in such manner and in such amounts as may be fixed from time to time by the Board of Directors. Section 2.10 Contracts and Transactions Involving Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE III Committees of the Board of Directors Section 3.1 Appointment and Powers. The Board of Directors may from time to time, by resolution passed by majority of the whole Board, designate one or more committees, each committee to consist of one or more directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The resolution of the Board of Directors may, in addition or alternatively, provide that in the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it, except as otherwise provided by law. Unless the resolution of the Board of Directors expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such committee may adopt rules governing the method of calling and time and place of holding its meetings. Unless otherwise provided by the Board of Directors, a majority of any such committee (or the member thereof, if only one) shall constitute a quorum for the transaction of business, and the vote of a majority of the members of such committee present at a meeting at which a quorum is present shall be the act of such committee. Each such committee shall keep a record of its acts and proceedings and shall report thereon to the Board of Directors whenever requested so to do. Any or all members of any such committee may be removed, with or without cause, by resolution of the Board of Directors, passed by a majority of the whole Board. ARTICLE IV Officers, Agents and Employees Section 4.1 Appointment and Term of Office. The officers of the Corporation may include a President, a Secretary and a Treasurer, and may also include a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers. All such officers shall be appointed by the Board of Directors or by a duly authorized committee thereof. Any number of such offices may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity. Except as may be prescribed otherwise by the Board of Directors or a committee thereof in a particular case, all such officers shall hold their offices at the pleasure of the Board for an unlimited term and need not be reappointed annually or at any other periodic interval. The Board of Directors may appoint, and may delegate power to appoint, such other officers, agents and employees as it may deem necessary or proper, who shall hold their offices or positions for such terms, have such authority and perform such duties as may from time to time be determined by or pursuant to authorization of the Board of Directors. Section 4.2 Resignation and Removal. Any officer may resign at any time upon written notice to the Corporation. Any officer, agent or employee of the Corporation may be removed by the Board of Directors, or by a duly authorized committee thereof, with or without cause at any time. The Board of Directors or such a committee thereof may delegate such power of removal as to officers, agents and employees not appointed by the Board of Directors or such a committee. Such removal shall be without prejudice to a person's contract rights, if any, but the appointment of any person as an officer, agent or employee of the Corporation shall not of itself create contract rights. Section 4.3 Compensation and Bond. The compensation of the officers of the Corporation shall be fixed by the Board of Directors, but this power may be delegated to any officer in respect of other officers under his or her control. The Corporation may secure the fidelity of any or all of its officers, agents or employees by bond or otherwise. Section 4.4 Chairman of the Board. The Chairman of the Board, if there be one, shall preside at all meetings of stockholders and of the Board of Directors, and shall have such other powers and duties as may be delegated to him or her by the Board of Directors. Section 4.5 President. The President shall be the chief executive officer of the Corporation. In the absence of the Chairman of the Board (or if there be none), he or she shall preside at all meetings of the stockholders and of the Board of Directors. He or she shall have general charge of the business affairs of the Corporation. He or she may employ and discharge employees and agents of the Corporation, except such as shall be appointed by the Board of Directors, and he or she may delegate these powers. The President may vote the stock or other securities of any other domestic or foreign corporation of any type or kind which may at any time be owned by the Corporation, may execute any stockholders' or other consents in respect thereof and may in his or her discretion delegate such powers by executing proxies, or otherwise, on behalf of the Corporation. The Board of Directors by resolution from time to time may confer like powers upon any other person or persons. Section 4.6 Vice Presidents. Each Vice President shall have such powers and perform such duties as the Board of Directors or the President may from time to time prescribe. In the absence or inability to act of the President, unless the Board of Directors shall otherwise provide, the Vice President who has served in that capacity for the longest time and who shall be present and able to act, shall perform all the duties and may exercise any of the powers of the President. The performance of any duty by a Vice President shall, in respect of any other person dealing with the Corporation, be conclusive evidence of his or her power to act. Section 4.7 Treasurer. The Treasurer shall have charge of all funds and securities of the Corporation, shall endorse the same for deposit or collection when necessary and deposit the same to the credit of the Corporation in such banks or depositaries as the Board of Directors may authorize. He or she may endorse all commercial documents requiring endorsements for or on behalf of the Corporation and may sign all receipts and vouchers for payments made to the Corporation. He or she shall have all such further powers and duties as generally are incident to the position of Treasurer or as may be assigned to him or her by the President or the Board of Directors. Section 4.8 Secretary. The Secretary shall record all the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose and shall also record therein all action taken by written consent of the stockholders or directors in lieu of a meeting. He or she shall attend to the giving and serving of all notices of the Corporation. He or she shall have custody of the seal of the Corporation and shall attest the same by his or her signature whenever required. He or she shall have charge of the stock ledger and such other books and papers as the Board of Directors may direct, but he or she may delegate responsibility for maintaining the stock ledger to any transfer agent appointed by the Board of Directors. He or she shall have all such further powers and duties as generally are incident to the position of Secretary or as may be assigned to him or her by the President or the Board of Directors. Section 4.9 Assistant Treasurers. In the absence or inability to act of the Treasurer, any Assistant Treasurer may perform all the duties and exercise all the powers of the Treasurer. The performance of any such duty shall, in respect of any other person dealing with the Corporation, be conclusive evidence of his or her power to act. An Assistant Treasurer shall also perform such other duties as the Treasurer or the Board of Directors may assign to him or her. Section 4.10 Assistant Secretaries. In the absence or inability to act of the Secretary, any Assistant Secretary may perform all the duties and exercise all the powers of the Secretary. The performance of any such duty shall, in respect of any other person dealing with the Corporation, be conclusive evidence of his or her power to act. An Assistant Secretary shall also perform such other duties as the Secretary or the Board of Directors may assign to him or her. Section 4.11 Delegation of Duties. In case of the absence of any officer of the Corporation, or for any other reason that the Board of Directors may deem sufficient, the Board of Directors may confer for the time being the powers or duties, or any of them, of such officer upon any other officer or upon any director. Section 4.12 Loans to Officers and Employees; Guaranty of Obligations of Officers and Employees. The Corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or any subsidiary, including any officer or employee who is a director of the Corporation or any subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation. ARTICLE V Indemnification Section 5.1 Indemnification of Directors, Officers, Employees and Agents. Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action or suit by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the Corporation, if, as and to the extent authorized by applicable law, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense or settlement of such action, suit or proceeding. Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized by statute. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. The indemnification and advancement of expenses provided by, or granted pursuant to, this By-law or statute in a specific case shall not be deemed exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any lawful agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE VI Common Stock Section 6.1 Certificates. Certificates for stock of the Corporation shall be in such form as shall be approved by the Board of Directors and shall be signed in the name of the Corporation by the Chairman or a Vice Chairman of the Board, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. Such certificates may be sealed with the seal of the Corporation or a facsimile thereof. Any of or all the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue. Section 6.2 Transfers of Stock. Transfers of stock shall be made only upon the books of the Corporation by the holder, in person or by duly authorized attorney, and on the surrender of the certificate or certificates for such stock properly endorsed. The Board of Directors shall have the power to make all such rules and regulations, not inconsistent with the Certificate of Incorporation and these By-Laws and the law, as the Board of Directors may deem appropriate concerning the issue, transfer and registration of certificates for stock of the Corporation. The Board may appoint one or more transfer agents or registrars of transfers, or both, and may require all stock certificates to bear the signature of either or both. Section 6.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new stock certificate in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate or his or her legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate. The Board of Directors may require such owner to satisfy other reasonable requirements. Section 6.4 Stockholder Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any adjournment thereof, or to give such consent, or to receive payment of such dividend or other distribution, or to exercise such rights in respect of any such change, conversion or exchange of stock, or to participate in such action, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any record date so fixed. If no record date is fixed by the Board of Directors, (l) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the date on which notice is given, or, if notice is waived by all stockholders entitled to vote at the meeting, at the close of business on the day next preceding the day on which the meeting is held, (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be at the close of business on the day on which the first written consent is expressed by the filing thereof with the Corporation as provided in Section 1.9 of these By-Laws, and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE VII Seal Section 7.1 Seal. The seal of the Corporation shall be circular in form and shall bear, in addition to any other emblem or device approved by the Board of Directors, the name of the Corporation, the year of its incorporation and the words "Corporate Seal" and "Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE VIII Waiver of Notice Section 8.1 Waiver of Notice. Whenever notice is required to be given by statute, or under any provision of the Certificate of Incorporation or these By-Laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. In the case of a stockholder, such waiver of notice may be signed by such stockholder's attorney or proxy duly appointed in writing. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice. ARTICLE IX Checks, Notes, Drafts, Etc. Section 9.1 Checks, Notes, Drafts, Etc. Checks, notes, drafts, acceptances, bills of exchange and other orders or obligations for the payment of money shall be signed by such officer or officers or person or persons as the Board of Directors or a duly authorized committee thereof may from time to time designate. ARTICLE X Amendments Section 10.1 Amendments. These By-Laws or any of them may be altered or repealed, and new By-Laws may be adopted, by the stockholders by vote at a meeting or by written consent without a meeting. The Board of Directors shall also have power, by a majority vote of the whole Board of Directors, to alter or repeal any of these By-Laws, and to adopt new By-Laws. ARTICLE XI Emergency By-Laws Section 11.1 Emergency By-Laws. The Emergency By-Laws provided in this Section 11.1 shall be operative during any emergency in the conduct of the business of the corporation resulting from an attack on the United States or on a locality in which the corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the Board of Directors or a standing committee thereof cannot readily be convened for action notwithstanding any different provision in the preceding By-Laws or in the Certificate of Incorporation or in the law. To the extent not inconsistent with the provisions of this Section, the By-Laws of the Corporation shall remain in effect during any emergency and upon its termination the Emergency By-Laws shall cease to be operative. Any amendments of these Emergency By-Laws may make any further or different provision that may be practical and necessary for the circumstances of the emergency. During any such emergency: (A) A meeting of the Board of Directors or a committee thereof may be called by any officer or director of the Corporation. Notice of the time and place of the meeting shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any available means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting; (B) The director or directors in attendance at the meeting shall constitute a quorum; (C) The officers or other persons designated on a list approved by the Board of Directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed directors for such meeting; (D) The Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties; (E) The Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do; and (F) To the extent required to constitute a quorum at any meeting of the Board of Directors during such an emergency, the officers of the corporation who are present shall be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting. No officer, director or employee acting in accordance with any Emergency By-Laws shall be liable except for willful misconduct. These Emergency By-Laws shall be subject to repeal or change by further action of the Board of Directors or by action of the stockholders. EX-99.B.27 21 CERTIFICATE OF INCORPORATION OF CGE ECK, INC. 1. The name of the corporation is CGE ECK, Inc. (the "Corporation"). 2. The address of the Corporation's registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is CT Corporation System. 3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. 4. The total number of shares the Corporation shall have authority to issue is One Hundred (100) shares of common stock, par value $.01 per share. 5. The name and mailing address of the Corporation's sole incorporator is James J. Mayer, The Cincinnati Gas & Electric Company, 139 East Fourth Street, Cincinnati, Ohio 45202. 6. The power to adopt, amend and repeal any or all of the by-laws of the Corporation is conferred upon the directors of the Corporation. 7. Elections of directors are not required to be by written ballot except as, and to the extent that, written ballot may be required by the by-laws of the Corporation. 8. No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (A) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (B) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (C) under Section 174 of the General Corporation Law of the State of Delaware; or (D) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitations on personal liability provided herein, shall be limited to the fullest extent permitted by the amended General Corporation Law of the State of Delaware. Any repeal or modification of this Article 8 shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification. Dated March 3rd, 1994 /s/ James J. Mayer James J. Mayer, Incorporator EX-99.B.28 22 BY-LAWS OF CGE ECK, INC. ARTICLE I Offices and Agent Section 1. Offices. The registered office of the Corporation shall be located in the City of Wilmington, New Castle County, State of Delaware. The Corporation may establish branch offices and conduct and carry on business at such other places within or without the State of Delaware as the Board of Directors may from time to time fix or designate, and any business conducted or carried on at such other place or places shall be as binding as effectual as if transacted at the registered office of the Corporation. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders in each year shall be held at such hour on said day and at place within or without the State of Delaware as may be designated by the Board of Directors, or if not so fixed, at the principal business office of the Corporation in the City of Cincinnati,, County of Hamilton, State of Ohio, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days, and not more than sixty (60) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the President or a Vice- President, by the Board of Directors or by shareholders holding in the aggregate one-fifth of the voting power of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, not less than ten (10) nor more than sixty (60) days after the receipt of said request. Section 5. Waiver of Notice. Notice of any shareholders' meeting may be waived in writing by any shareholder at any time before or after the meeting. Section 6. Quorum. At any meeting of the shareholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting, which date shall not exceed forty (40) days preceding the date of meeting. A complete list of shareholders entitled to vote at the shareholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. The list of shareholders shall be delivered to the Inspectors of Election after their appointment at the meeting. Section 8. Inspectors of Election. At each meeting of the shareholders, the presiding officer of the meeting shall appoint three (3) inspectors of election, who need not be shareholders. The inspectors shall receive and count the votes, either upon an election or for the decision of any question, and shall determine the result. Their certificate of any vote shall be prima facie evidence thereof. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of three (3) Directors, who need not be shareholders. Directors shall be elected annually by the shareholders at the annual meeting, and each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Delaware) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Kentucky), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be held at such time and place (either within or without the State of Delaware) as determined by and may be called by, the President or any Vice-President or any two (2) members of the Board of Directors upon at least one hour prior notice. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum at all meetings for the transaction of business. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its subsidiaries) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole Board, designate annually three (3) of their number (the President and two (2) other members of the Board) to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the Board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the Board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a President, one or more Vice-Presidents, one or more Managing Directors, a Secretary and one or more Assistant Secretaries and a Treasurer and one or more Assistant Treasurers, all of whom shall be elected by the Board of Directors, and shall hold office for one (1) year and until their successors are chosen and qualified. The Board of Directors may, at its option, elect a Chairman of the Board. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed at any time by the affirmative vote of a majority of the Board of Directors at a special meeting of the Board of Directors called for the purpose. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. Chairman of the Board. The Chairman of the Board of Directors, if there is one elected as herein provided, shall be a director and shall preside at all meetings of the Board of Directors and shall, subject to their direction and control, be their representative and medium of communication, and shall perform such duties as may from time to time be assigned to him by the Board of Directors. Section 4. President and Chief Executive Officer. The President and Chief Executive Officer shall be a director and shall be the chief executive officer of the Corporation. He shall preside at all meetings of the shareholders and Executive Committee and, in the absence of the Chairman of the Board of Directors, if there be one, at all meetings of the Board of Directors. He shall have general and active management of the business of the Corporation, shall see that all orders and resolutions of the Board of Directors or Executive Committee are carried into effect, and shall have general powers and duties of supervision and management usually vested in the office of President and chief executive officer of a corporation. Section 5. Vice-Presidents. The Vice-Presidents shall perform such duties as the Board of Directors shall, from time to time, require. In the absence or incapacity of the President, the Vice-President designated by the President or Board of Directors or Executive Committee shall exercise the powers and duties of the President. Section 6. Managing Directors. The Managing Directors shall have authority to bind the Corporation to contractual obligations and shall perform such duties as the Board of Directors shall, from time to time, require. Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose. He shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors or by the President. Assistant Secretaries. At the request of the Secretary, or in his absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the President, the Secretary, or the Board of Directors. Section 8. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors or by the President, taking proper vouchers therefor, and shall render to the President and directors at all regular meetings of the Board of Directors, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his transactions as Treasurer and of the financial condition of the Corporation. He shall also perform such other duties as the Board of Directors may from time to time require. He shall give a bond for the faithful discharge of his duties in such sum as the Board of Directors may require. Assistant Treasurers. At the request of the Treasurer, or in his absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the President, the Treasurer, or the Board of Directors. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. B. "Director" means an individual who is or was a Director of the Corporation or an individual who, while a Director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A Director shall be considered to be serving an employee benefit plan at the Corporation's request if his or her duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a Director. C. "Expenses" include counsel fees and any expenses incurred in connection with investigating or defending any claim. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a Director, the office of Director in the Corporation; and (2) When used with respect to an individual other than a Director, as contemplated in Section 6, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" shall not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal. Section 2. Indemnification. A. Except as provided in subsection (D) of this Section, the Corporation shall indemnify an individual made a party to a proceeding because he or she is or was a Director against liability incurred in the proceeding if: (1) He or she conducted himself or herself in good faith; and (2) He or she reasonably believed: (a) In the case of conduct in his or her official capacity with the Corporation, that his or her conduct was in its best interest; and (b) In all other cases, that his or her conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. B. A Director's conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in and beneficiaries of the plan shall be conduct that satisfies the requirement of subsection A(2)(b) of this Section. C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not be, of itself, determinative that the Director did not meet the standard of conduct described in this Section. D. The Corporation may not indemnify a Director under this Section: (1) In connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation; or (2) In connection with any other proceeding charging improper personal benefit to him or her, whether or not involving action in his or her official capacity, in which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her. E. Indemnification permitted under this Section in connection with a proceeding by or in the right of the Corporation shall be limited to reasonable expenses incurred in connection with the proceeding. Section 3. Mandatory Indemnification. Unless limited by the Articles of Incorporation, the Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she is or was a Director of the Corporation against reasonable expenses incurred by him or her in connection with the proceeding. Section 4. Advance for Expenses. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a Director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The Director furnishes the Corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in Section 2; (2) The Director furnishes the Corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this article. B. The undertaking required by subsection A(2) of this Section shall be an unlimited general obligation of the Director but shall not be required to be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 5. Section 5. Determination and Authorization of Indemnification. A. The Corporation shall not indemnify a Director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because he or she has met the standard of conduct set forth in Section 2. B. The determination shall be made: (1) By the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the proceeding; (2) If a quorum cannot be obtained under subsection B(1) of this Section, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding; (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subsection B(1) and (2) of this Section; or (b) If quorum of the Board of Directors cannot be obtained under subsection B(1) of this Section and a committee cannot be designated under subsection B(2) of this Section, selected by majority vote of the full Board of Directors (in which selection Directors who are parties may participate); or (4) By the shareholders, but shares owned by or voted under the control of Directors who are at the time parties to the proceeding shall not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) of this Section to select counsel. Section 6. Indemnification of Officers, Employees, and Agents. Unless the Corporation's Articles of Incorporation provide otherwise: A. An officer of the Corporation who is not a Director shall be entitled to mandatory indemnification under Section 3, and is entitled to apply for court-ordered indemnification under the Kentucky Business Corporation Act, in each case to the same extent as a Director; B. The Corporation may indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation who is not a Director to the same extent as to a Director; and C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a Director to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, By-Laws, general or specific action of the Board of Directors, or contract. Section 7. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a Director, officer, employee, or agent of the Corporation, or who, while a Director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a Director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him or her against the same liability under Section 2 or 3. Section 8. Application of this Article. A. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the By-Laws, any agreement, vote of shareholders or disinterested Directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. B. This Article shall not limit the Corporation's power to pay or reimburse expenses incurred by a Director in connection with his or her appearance as a witness at a proceeding at a time when he or she has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by the President or a Vice-President and also by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered. The name and address of the person owning the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Shares may be transferred on the books of the Corporation by the holder in person or by his attorney, upon the surrender and cancellation of certificates for a like number of shares. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding forty (40) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. The Board of Directors of the Corporation may declare and the Corporation may pay dividends on its outstanding shares in cash or property or in its own shares, or may issue its own shares or securities in lieu of unpaid accrued dividends, but no dividend shall be declared or paid or such issue made at a time when the Corporation is insolvent or when such payment or issue would render the Corporation insolvent or would diminish the amount of the capital of the Corporation. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes may, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by either the President or a Vice-President or a Managing Director. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a shareholder, director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telecopy, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal Section 1. Corporate Seal. The corporate seal of the Corporation shall consist of a metallic stamp, circular in form, bearing in its center the word "Seal", and on the outer edge the name of the Corporation. ARTICLE XII Amendment Section 1. Amendment. These By-Laws may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise two-thirds of the voting power on such proposal. EX-99.B.29 23 CERTIFICATE OF INCORPORATION OF CINERGY RESOURCES, INC. 1. The name of the Corporation is Cinergy Resources, Inc. (the "Corporation"). 2. The address of the Corporation's registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is The Corporation Trust Company. 3. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. 4. The total number of shares the Corporation shall have authority to issue is One Hundred (100) shares of common stock, par value $.01 per share. 5. The name and mailing address of the Corporation's sole incorporator is James J. Mayer, The Cincinnati Gas & Electric Company, 139 East Fourth Street, Cincinnati, Ohio 45202. 6. The power to adopt, amend and repeal any or all of the by-laws of the Corporation is conferred upon the directors of the Corporation. 7. Elections of directors are not required to be by written ballot except as, and to the extent that, written ballot may be required by the by-laws of the Corporation. 8. No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (A) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (B) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (C) under Section 174 of the General Corporation Law of the State of Delaware; or (D) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitations on personal liability provided herein, shall be limited to the fullest extent permitted by the amended General Corporation Law of the State of Delaware. Any repeal or modification of this Article 8 shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification. Dated January 7, 1994 /s/ James J. Mayer James J. Mayer, Incorporator EX-99.B.30 24 BY-LAWS OF CINERGY RESOURCES, INC. ARTICLE I Offices Section 1. Offices. The registered office of the Corporation shall be located in the City of Wilmington, New Castle County, State of Delaware. The Corporation may establish branch offices and conduct and carry on business at such other places within or without the State of Delaware as the Board of Directors may from time to time fix or designate, and any business conducted or carried on at such other place or places shall be as binding as effectual as if transacted at the registered office of the Corporation. ARTICLE II Stockholders' Meetings Section 1. Annual Meeting. The annual meeting of the stockholders shall be held at such place within or without the State of Delaware as may be designated by the Board of Directors on the first Wednesday of May in each year, if not a legal holiday, and if a legal holiday, then on the next succeeding business day, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each stockholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days, and not more than sixty (60) days prior to the meeting. Section 3. Special Meetings. Special meetings of the stockholders may be called at any time by the President or a Vice- President, by the Board of Directors or by stockholders holding in the aggregate one-fifth of the voting power of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of a special meeting, in writing, stating the time, place and purpose thereof, shall be given to each stockholder entitled to vote thereat, not less than ten (10) nor more than sixty (60) days after the receipt of said request. Section 5. Waiver of Notice. Notice of any stockholders' meeting may be waived in writing by any stockholder at any time before or after the meeting. Section 6. Quorum. At any meeting of the stockholders, the holders of a majority of the shares of stock of the Corporation, issued and outstanding, and entitled to vote, present in person or by proxy, shall constitute a quorum for all purposes, unless otherwise specified by law or the Articles of Incorporation. If, however, such majority shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote, present in person or by proxy, shall have power to adjourn the meeting from time to time without further notice, other than by announcement at the meeting, until the requisite amount of voting stock shall be present. At any such adjourned meeting, at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 7. Voting. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than eleven (11) months prior to said meeting, unless some other definite period of validity shall be expressly provided therein. Each stockholder shall have one (1) vote for each share of stock having voting power, registered in his name on the books of the Corporation, at the date fixed for determination of persons entitled to vote at the meeting, which date shall not exceed forty (40) days preceding the date of meeting. A complete list of stockholders entitled to vote at the stockholders' meetings, arranged in alphabetical order, with the address and the number of voting shares held by each, shall be produced on the request of any stockholder, and such list shall be prima facie evidence of the ownership of shares and of the right of stockholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. The list of stockholders shall be delivered to the Inspectors of Election after their appointment at the meeting. Section 8. Inspectors of Election. At each meeting of the stockholders, the presiding officer of the meeting shall appoint three (3) inspectors of election, who need not be stockholders. The inspectors shall receive and count the votes, either upon an election or for the decision of any question, and shall determine the result. Their certificate of any vote shall be prima facie evidence thereof. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. The business and affairs of the Corporation shall be managed and controlled by a Board of four (4) Directors, who need not be stockholders. Directors shall be elected annually by the stockholders at the annual meeting, and each director shall hold office until his successor shall have been elected and qualified. Any director may resign at any time. Vacancies occurring in the Board of Directors shall be filled by the remaining members of the board. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of stockholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Delaware) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of all the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place (either within or without the State of Delaware), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be held at such time and place (either within or without the State of Delaware) as determined by and may be called by, the President or any Vice-President or any two (2) members of the Board of Directors upon at least one hour prior notice. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these By-Laws. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum at all meetings for the transaction of business. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or of The Cincinnati Gas & Electric Company or any of its subsidiaries) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole Board, designate annually three (3) of their number (the President and two (2) other members of the Board) to constitute an Executive Committee, who to the extent provided in the resolution, shall exercise in the intervals between the meetings of the Board of Directors the powers of the Board in the management of the business and affairs of the Corporation. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the Board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall consist of a President, one or more Vice-Presidents, a Secretary and one or more Assistant Secretaries and a Treasurer and one or more Assistant Treasurers, all of whom shall be elected by the Board of Directors, and shall hold office for one (1) year and until their successors are chosen and qualified. The Board of Directors may, at its option, elect a Chairman of the Board. Any two or more offices may be held by the same person, except that the duties of the President and Secretary shall not be performed by the same person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed at any time by the affirmative vote of a majority of the Board of Directors at a special meeting of the Board of Directors called for the purpose. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. Chairman of the Board. The Chairman of the Board of Directors, if there is one elected as herein provided, shall be a director and shall preside at all meetings of the Board of Directors and shall, subject to their direction and control, be their representative and medium of communication, and shall perform such duties as may from time to time be assigned to him by the Board of Directors. Section 4. President and Chief Executive Officer. The President and Chief Executive Officer shall be a director and shall be the chief executive officer of the Corporation. He shall preside at all meetings of the stockholders and Executive Committee and, in the absence of the Chairman of the Board of Directors, if there be one, at all meetings of the Board of Directors. He shall have general and active management of the business of the Corporation, shall see that all orders and resolutions of the Board of Directors or Executive Committee are carried into effect, and shall have general powers and duties of supervision and management usually vested in the office of President and chief executive officer of a corporation. Section 5. Vice-Presidents. The Vice-Presidents shall perform such duties as the Board of Directors shall, from time to time, require. In the absence or incapacity of the President, the Vice-President designated by the President or Board of Directors or Executive Committee shall exercise the powers and duties of the President. Section 6. Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the stockholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose. He shall see that proper notice is given of all meetings of the stockholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors or by the President. Assistant Secretaries. At the request of the Secretary, or in his absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the President, the Secretary, or the Board of Directors. Section 7. Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors or by the President, taking proper vouchers therefor, and shall render to the President and directors at all regular meetings of the Board of Directors, or whenever they may require it, and to the annual meeting of the stockholders, an account of all his transactions as Treasurer and of the financial condition of the Corporation. He shall also perform such other duties as the Board of Directors may from time to time require. He shall give a bond for the faithful discharge of his duties in such sum as the Board of Directors may require. Assistant Treasurers. At the request of the Treasurer, or in his absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the President, the Treasurer, or the Board of Directors. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Definitions. As used in this Article: A. "Corporation" includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction. B. "Director" means an individual who is or was a Director of the Corporation or an individual who, while a Director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A Director shall be considered to be serving an employee benefit plan at the Corporation's request if his or her duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a Director. C. "Expenses" include counsel fees. D. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. E. "Official capacity" means: (1) When used with respect to a Director, the office of Director in the Corporation; and (2) When used with respect to an individual other than a Director, as contemplated in Section 6, the office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" shall not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise. F. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. G. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal. Section 2. Indemnification. A. Except as provided in subsection (D) of this Section, the Corporation shall indemnify an individual made a party to a proceeding because he or she is or was a Director against liability incurred in the proceeding if: (1) He or she conducted himself or herself in good faith; and (2) He or she reasonably believed: (a) In the case of conduct in his or her official capacity with the Corporation, that his or her conduct was in its best interest; and (b) In all other cases, that his or her conduct was at least not opposed to its best interests; and (3) In the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. B. A Director's conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in and beneficiaries of the plan shall be conduct that satisfies the requirement of subsection A(2)(b) of this Section. C. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not be, of itself, determinative that the Director did not meet the standard of conduct described in this Section. D. The Corporation may not indemnify a Director under this Section: (1) In connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation; or (2) In connection with any other proceeding charging improper personal benefit to him or her, whether or not involving action in his or her official capacity, in which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her. E. Indemnification permitted under this Section in connection with a proceeding by or in the right of the Corporation shall be limited to reasonable expenses incurred in connection with the proceeding. Section 3. Mandatory Indemnification. Unless limited by the Articles of Incorporation, the Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she is or was a Director of the Corporation against reasonable expenses incurred by him or her in connection with the proceeding. Section 4. Advance for Expenses. A. The Corporation may pay for or reimburse the reasonable expenses incurred by a Director who is a party to a proceeding in advance of final disposition of the proceeding if: (1) The Director furnishes the Corporation a written affirmation of his or her good faith belief that he or she has met the standard of conduct described in Section 2; (2) The Director furnishes the Corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct; and (3) A determination is made that the facts then known to those making the determination would not preclude indemnification under this article. B. The undertaking required by subsection A(2) of this Section shall be an unlimited general obligation of the Director but shall not be required to be secured and may be accepted without reference to financial ability to make repayment. C. Determinations and authorizations of payments under this Section shall be made in the manner specified in Section 5. Section 5. Determination and Authorization of Indemnification. A. The Corporation shall not indemnify a Director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because he or she has met the standard of conduct set forth in Section 2. B. The determination shall be made: (1) By the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the proceeding; (2) If a quorum cannot be obtained under subsection B(1) of this Section, by majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding; (3) By special legal counsel: (a) Selected by the Board of Directors or its committee in the manner prescribed in subsection B(1) and (2) of this Section; or (b) If quorum of the Board of Directors cannot be obtained under subsection B(1) of this Section and a committee cannot be designated under subsection B(2) of this Section, selected by majority vote of the full Board of Directors (in which selection Directors who are parties may participate); or (4) By the stockholders, but shares owned by or voted under the control of Directors who are at the time parties to the proceeding shall not be voted on the determination. C. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection B(3) of this Section to select counsel. Section 6. Indemnification of Officers, Employees, and Agents. Unless the Corporation's Articles of Incorporation provide otherwise: A. An officer of the Corporation who is not a Director shall be entitled to mandatory indemnification under Section 3, and is entitled to apply for court-ordered indemnification under the Kentucky Business Corporation Act, in each case to the same extent as a Director; B. The Corporation may indemnify and advance expenses under this Article to an officer, employee, or agent of the Corporation who is not a Director to the same extent as to a Director; and C. The Corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a Director to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, By-Laws, general or specific action of the Board of Directors, or contract. Section 7. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a Director, officer, employee, or agent of the Corporation, or who, while a Director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a Director, officer, employee, or agent, whether or not the Corporation would have power to indemnify him or her against the same liability under Section 2 or 3. Section 8. Application of this Article. A. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the By-Laws, any agreement, vote of stockholders or disinterested Directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. B. This Article shall not limit the Corporation's power to pay or reimburse expenses incurred by a Director in connection with his or her appearance as a witness at a proceeding at a time when he or she has not been made a named defendant or respondent to the proceeding. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by the President or a Vice-President and also by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered. The name and address of the person owning the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Shares may be transferred on the books of the Corporation by the holder in person or by his attorney, upon the surrender and cancellation of certificates for a like number of shares. Section 3. Appointment of Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or one or more registrars or both, and may require all stock certificates to bear the signature of either or both. When any such certificate is signed, by a transfer agent or registrar, the signatures of the corporate officers and the corporate seal, if any, upon such certificate may be facsimiles, engraved or printed. In case any officer designated for the purpose, who has signed or whose facsimile signature has been used on any such certificate, shall, from any cause, cease to be such officer before the certificate has been delivered by the Corporation, the certificate may nevertheless be adopted by the Corporation and be issued and delivered as though the person had not ceased to be such officer. Section 4. Closing of Transfer Books or Taking Record of Stockholders. The Board of Directors may fix a time not exceeding forty (40) days preceding the date of any meeting of stockholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the stockholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 5. Lost Stock Certificates. In the case of a lost stock certificate a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. The Board of Directors of the Corporation may declare and the Corporation may pay dividends on its outstanding shares in cash or property or in its own shares, or may issue its own shares or securities in lieu of unpaid accrued dividends, but no dividend shall be declared or paid or such issue made at a time when the Corporation is insolvent or when such payment or issue would render the Corporation insolvent or would diminish the amount of the capital of the Corporation. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all bonds and notes may, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by either the President or a Vice-President. The President, any Vice-President or the Treasurer may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf singly without necessity for counter-signature. The Board of Directors may by resolution adopted at any meeting designate other officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these By-Laws to a stockholder, director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telecopy, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these By-Laws may be waived by the person entitled to such notice. ARTICLE XI Corporate Seal Section 1. Corporate Seal. The corporate seal of the Corporation shall consist of a metallic stamp, circular in form, bearing in its center the word "Seal", and on the outer edge the name of the Corporation. ARTICLE XII Amendment Section 1. Amendment. These By-Laws may be amended or repealed at any meeting of the stockholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise two-thirds of the voting power on such proposal. EX-99.B.31 25 ARTICLES OF INCORPORATION OF CINERGY TECHNOLOGY, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "Cinergy Technology, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To provide energy or functionally related environmental services and systems to selected foreign or domestic industrial, consumer or governmental entities; (b) To enter into joint ventures or partnership agreements; (c) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (d) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, covenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (e) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (f) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator Jon D. Noland Jon D. Noland DATED: Dec. 10, 1991 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 As Amended August 1, 1995 EX-99.B.32 26 BY-LAWS OF CINERGY TECHNOLOGY, INC. BY-LAWS OF CINERGY TECHNOLOGY, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the Cinergy Technology, Inc. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The president, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the president, the vice president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than two of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The president shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the president, the vice president shall preside at all meetings of the board of directors. When the board of directors is not in session, the president shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by the vice president, unless otherwise ordered by the board of directors. SECTION 7. The vice president and general manager shall, subject to the control of the board of directors and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors or the president. He shall report to the president. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 8. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the president or a vice president. SECTION 9. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the president or a vice president. SECTION 10. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. He shall render to the president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the president or a vice president. SECTION 11. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 12. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the president or a vice president. SECTION 13. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the president of this corporation, if he be present, or in his absence by the vice president of this corporation if he be present, or in the absence of such president by any vice president of this corporation who may be present. Whenever, in the judgment of the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.33 27 ARTICLES OF INCORPORATION OF PSI ARGENTINA, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Argentina, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production and distribution facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage in any other lawful energy, environmental, or functionally related business permitted to a corporation organized under the Act; (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (f) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (g) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (h) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (i) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (j) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (k) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations, and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations, and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B)(iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations, and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation, or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations, and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations, and restrictions expressly provided in this ARTICLE V (B)(i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed, or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i)(h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i)(g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation, or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger, or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation, or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i)(d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption), and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversation or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B)(iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize, or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation, or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration, or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration, or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation, or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved, or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation, or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase, or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital, or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants, or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire, or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures, or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change, or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold, and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification, or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley Cheryl M. Foley DATED: April 10, 1992 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.34 28 ARTICLES OF INCORPORATION OF COSTANERA POWER CORP. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "Costanera Power Corp." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage into joint ventures or partnership agreements; (e) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (f) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations, and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations, and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B)(iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations, and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation, or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations, and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations, and restrictions expressly provided in this ARTICLE V (B)(i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed, or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i)(h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i)(g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation, or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger, or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation, or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i)(d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption), and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversation or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B)(iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize, or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation, or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration, or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration, or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation, or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved, or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation, or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase, or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital, or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants, or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire, or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures, or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change, or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold, and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification, or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley Cheryl M. Foley DATED: April 10, 1992 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.35 29 ARTICLES OF INCORPORATION OF COSTANERA POWER CORP. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "Costanera Power Corp." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage into joint ventures or partnership agreements; (e) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (f) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations, and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations, and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B)(iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations, and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation, or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations, and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations, and restrictions expressly provided in this ARTICLE V (B)(i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed, or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i)(h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation, or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i)(g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation, or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger, or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation, or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i)(d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption), and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversation or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii)(c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B)(iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize, or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation, or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration, or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration, or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii)(c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation, or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved, or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation, or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase, or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital, or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants, or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire, or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures, or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change, or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold, and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification, or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley Cheryl M. Foley DATED: April 10, 1992 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.36 30 BY-LAWS OF COSTANERA POWER CORP. BY-LAWS OF COSTANERA POWER CORP. ARTICLE I. OFFICES. SECTION 1. The principal office of the Costanera Power Corp. shall be at 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in the shareholder's name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote at such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by an inspector, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspector, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such inspector. Such inspector may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason the inspector previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector in place of such inspector failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the person to act as inspector at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than two (2) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which the director's term expires and until the director's successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. The chairman shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for the president by the board of directors or the chairman. The president shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. The vice president and general manager shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for the president and general manager by the board of directors, the chairman or the president. The vice president and general manager shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist in the secretarial duties and shall have such other powers and duties as may be prescribed for such assistant secretary by the board of directors, or be delegated to such assistant secretary by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, those powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and such assistant secretary shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. The treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during the treasurer's term of office. When necessary or proper, the treasurer shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into the treasurer's possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into the treasurer's possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. The treasurer shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. The treasurer shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all the treasurer's transactions as treasurer and of the financial condition of the corporation. The treasurer shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the treasurer's possession or under the treasurer's control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist in the duties of the treasurer, and shall have such other powers and duties as may be prescribed for the assistant treasurer by the board of directors or be delegated to the assistant treasurer by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, those powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and such assistant treasurer shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. The comptroller shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. The comptroller shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. The auditor shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. The auditor shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of the shareholder's shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if the chairman be present, or in the chairman's absence by the president of this corporation if the president be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors from time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.37 31 ARTICLES OF INCORPORATION OF PSI INTERNATIONAL, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI International, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in the construction, operation, development or ownership of cogenerating facilities or power production facilities; (b) To enter into joint ventures or partnership agreements; (c) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (d) To engage in utility and industrial salvage service. To buy, sell or deal in utility or industrial scrap or salvage materials. To erect, install, dismantle, salvage and scrap new or used electric utility supplies, material and equipment; (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (f) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (g) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (h) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (i) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (j) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (k) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (l) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (m) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1400, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Jon D. Noland Jon D. Noland DATED: Dec. 6, 1991 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.38 32 BY-LAWS OF PSI INTERNATIONAL, INC. NOTE The marginal notes herein contained are no part of the By-laws of PSI International, Inc., as adopted by the board of directors, being here added solely for the convenience of the reader. BY-LAWS OF PSI INTERNATIONAL, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI International, Inc. shall be at 251 North Illinois Street, Suite 1400, in the city of Indianapolis, county of Marion and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The president, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the president, the vice president if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than two of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The president shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the president, the vice president shall preside at all meetings of the board of directors. When the board of directors is not in session, the president shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by the vice president, unless otherwise ordered by the board of directors. SECTION 7. The vice president and general manager shall, subject to the control of the board of directors, and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors or the president. He shall report to the president. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 8. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the president or a vice president. SECTION 9. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the president or a vice president. SECTION 10. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. He shall render to the president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the president or a vice president. SECTION 11. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 12. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the president or a vice president. SECTION 13. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the president of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of such president by any vice president of this corporation who may be present. Whenever, in the judgment of the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.39 33 ARTICLES OF INCORPORATION OF PSI POWER RESOURCE DEVELOPMENT, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Power Resource Development, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in the construction, operation, development or ownership of cogenerating facilities or power production facilities; (b) To enter into joint ventures or partnership agreements; (c) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (d) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, covenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (e) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (f) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessble shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Jon D. Noland Jon D. Noland DATED: Jan. 22, 1990 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.40 34 BY-LAWS OF PSI RESOURCE DEVELOPMENT, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI Resource Development, Inc. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than three of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for him by the board of directors or the chairman. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors, the chairman or the president. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. He shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. He shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. He shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. He shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.41 35 ARTICLES OF INCORPORATION OF PSI POWER RESOURCE OPERATIONS, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Power Resource Operations, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in the construction, operation, development or ownership of cogenerating facilities or power production facilities; (b) To enter into joint ventures or partnership agreements; (c) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (d) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, covenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (e) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (f) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessble shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Jon D. Noland Jon D. Noland DATED: Dec. 21, 1989 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.42 36 BY-LAWS OF PSI RESOURCE OPERATIONS, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI Resource Operations, Inc. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than three of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for him by the board of directors or the chairman. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors, the chairman or the president. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. He shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. He shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. He shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. He shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.43 37 ARTICLES OF INCORPORATION OF PSI RECYCLING, INC. The undersigned Incorporator, desiring to form a (the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law, adopts the following Articles of Incorporation for such Corporation. ARTICLE I Name The name of the Corporation is: "PSI Recycling, Inc." ARTICLE II Purposes The purposes for which it is formed are as follows: (a) to salvage scrap, surplus, damaged or obsolete paper, wire, materials and equipment of whatever kind or description from any source; (b) to reprocess such salvage and to dispose of such reprocessed material; (c) to buy, sell, lease, use, mortgage, improve or otherwise handle, deal in and dispose of such material as may be necessary or convenient; (d) to carry on the business alone, in, with or as agent for other individuals, partnerships, joint ventures, corporations, associations or other forms of enterprise; (e) to borrow or lend money and to make guarantees; (f) to purchase, lease, acquire, own, hold, sell or mortgage, real and personal property of every kind; and; (g) to have and to exercise all the powers conferred by the laws of Indiana upon corporations formed under the Indiana Business Corporation Law, and all amendments made thereto from time to time. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 20,000,000 shares, of which 15,000,000 shares shall be Common Stock, without par value, and 5,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE (V) (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE (V) (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE (V) (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE (V) (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE (V) (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE (V) (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE (V) (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE (V) (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE (V) (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares or the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall not be less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock; provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For purposes of ARTICLE (V) (B) of these Articles of Incorporation: (I) the term "Common Stock Equity" shall mean the sum of the amount of the stated value of the issued and outstanding shares of the Common Stock and the surplus (including capital or paid-in surplus) of the Corporation, less the amount known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of plant and other property, and less any items set forth on the asset side of the balance sheet as a result of accounting convention such as unamortized debt discount and expense, capital stock discount and expense, and the excess, if any, of the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all outstanding shares of Cumulative Preferred Stock over the aggregate stated value of such shares, unless such amount or items so to be deducted in the determination of the Common Stock Equity are being amortized or are provided for by reserves; (II) the term "Gross Operating Revenues of the Corporation" for any period shall mean an amount determined by deducting from all revenues of the Corporation for such period derived from the operation of the properties owned by the Corporation, the total of all cash payments which shall have been made or agreed to be made and for which liability shall have been incurred by the Corporation as rental for such period for any property not owned by the Corporation; and (III) the term "Net Earnings of the Corporation Available for the Payment of Interest Charges" for any twelve month period shall mean an amount equal to the sum of the operating revenues and income from investments and other miscellaneous income for such period with respect to which the determination of such net income is being made, less all proper deductions (including accruals) for operating expenses for such period, including maintenance and provision for depreciation in the actual amount thereof for such period as shown on the books of the Corporation or an amount equal to fifteen percentum (15%) of the Gross Operating Revenues of the Corporation for such period, whichever is greater, income and excess profits and other taxes, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. (i) After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. (ii) After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. (iii) Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. (i) Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. (ii) No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. (iii) The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. (iv) Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director or officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law, as the same exists now or in the future, against liability, expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or officer of the Corporation and such right shall inure to the benefit of his or her heirs, executors and administrators. The right to indemnification conferred in this ARTICLE VIII shall include, to the full extent permitted by law, the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation who are not directors or officers similar to those conferred in this ARTICLE VIII to directors and officers of the Corporation. Such right to indemnification and to the advancement of expenses conferred in this ARTICLE VIII shall not be exclusive of any other rights to which any person may be entitled under any now or hereafter existing statute, any other provision of these Articles, by-law, agreement, vote of shareholders or otherwise. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director, officer, employee or agent of the Corporation existing pursuant to this ARTICLE VIII with respect to any acts or omissions occurring prior to such repeal or modification. Incorporator /s/ Jon D. Noland Jon D. Noland DATED: May 31, 1990 This instrument was prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.4 38 BY-LAWS OF PSI RECYCLING, INC. NOTE The marginal notes herein contained are no part of the By-laws of PSI Recycling, Inc., as adopted by the board of directors, being here added solely for the convenience of the reader. BY-LAWS OF PSI RECYCLING, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI Recycling, Inc. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than three of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for him by the board of directors or the chairman. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors, the chairman or the president. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. He shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. He shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. He shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. He shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.45 39 ARTICLES OF INCORPORATION OF PSI SUNNYSIDE, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Sunnyside, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in the construction, operation, development or ownership of cogenerating facilities or power production facilities; (b) To enter into joint ventures or partnership agreements; (c) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (d) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, covenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (e) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (f) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (g) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (h) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (i) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (k) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (l) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessable shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Jon D. Noland Jon D. Noland DATED: Dec. 6, 1990 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.46 40 BY-LAWS OF PSI SUNNYSIDE, INC. NOTE The marginal notes herein contained are no part of the By-laws of PSI Sunnyside, Inc., as adopted by the board of directors, being here added solely for the convenience of the reader. BY-LAWS OF PSI SUNNYSIDE, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI Sunnyside, Inc. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than three of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for him by the board of directors or the chairman. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors, the chairman or the president. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. He shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. He shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. He shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. He shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.47 41 ARTICLES OF INCORPORATION OF PSI T&D INTERNATIONAL, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI T&D International, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production, transmission and distribution facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage in any other lawful energy, environmental, or functionally related business permitted to a corporation organized under the Act; (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (f) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (g) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (h) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (i) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (j) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (k) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1410, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Cumulative Preferred Stock, $100 par value. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series. B. Voting Rights of Cumulative Preferred Stock. (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) The Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Other Provisions. 1. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 2. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 3. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley Cheryl M. Foley DATED: Aug. 3, 1994 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.48 42 BY-LAWS OF PSI T&D INTERNATIONAL, INC. BY-LAWS OF PSI T&D INTERNATIONAL, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of PSI T&D International, Inc. shall be at 251 North Illinois Street, Suite 1410, Indianapolis, Indiana 46204; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in the shareholder's name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote at such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by an inspector, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspector, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such inspector. Such inspector may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason the inspector previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector in place of such inspector failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the person to act as inspector at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than two (2) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which the director's term expires and until the director's successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by- laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by-laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. The chairman shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for the president by the board of directors or the chairman. The president shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. The vice president and general manager shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for the president and general manager by the board of directors, the chairman or the president. The vice president and general manager shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist in the secretarial duties and shall have such other powers and duties as may be prescribed for such assistant secretary by the board of directors, or be delegated to such assistant secretary by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, those powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and such assistant secretary shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. The treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during the treasurer's term of office. When necessary or proper, the treasurer shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into the treasurer's possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into the treasurer's possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. The treasurer shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. The treasurer shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all the treasurer's transactions as treasurer and of the financial condition of the corporation. The treasurer shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the treasurer's possession or under the treasurer's control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist in the duties of the treasurer, and shall have such other powers and duties as may be prescribed for the assistant treasurer by the board of directors or be delegated to the assistant treasurer by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, those powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and such assistant treasurer shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. The comptroller shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. The comptroller shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. The auditor shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. The auditor shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of the shareholder's shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if the chairman be present, or in the chairman's absence by the president of this corporation if the president be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors from time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.49 43 ARTICLES OF INCORPORATION OF PSI YACYRETA, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law as amended (hereinafter referred to as to the "Act"), execute the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "PSI Yacyreta, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To acquire, purchase, own, and hold the stock of other energy, environmental, or functionally related corporations, and to do every act and thing covered generally by the denomination "holding company," including the directing of the operations of other corporations through the ownership of stock therein; (b) To engage in the construction, operation, development, or ownership of power production, transmission and distribution facilities; (c) To provide energy, energy-related, and environmental services; (d) To engage in any other lawful energy, environmental, or functionally related business permitted to a corporation organized under the Act; (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana or the United States or its territories, and, in general, to do and perform any and all things necessary, convenient, or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority, and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (f) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, foreign or domestic governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness, or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends, and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers, and privileges of ownership, including all voting powers on any stocks so owned; (g) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership, or corporation, foreign or domestic government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness, or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (h) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership, or corporation, foreign or domestic government, or other legal entity; (i) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (j) To acquire (by purchase, exchange, lease, hire, or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development, or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (k) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will, and assets of any person, firm, association, or corporation (either foreign or domestic), suitable, convenient, advantageous, or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote, and participate in financial, commercial, mercantile, and other business, works, contracts, undertakings, and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 251 North Illinois Street, Suite 1410, Indianapolis, Indiana 46204. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Cumulative Preferred Stock, $100 par value. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series. B. Voting Rights of Cumulative Preferred Stock. (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) The Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Other Provisions. 1. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 2. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 3. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley _______ Cheryl M. Foley DATED: September 8, 1994 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.50 44 BY-LAWS OF PSI YACYRETA, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of PSI Yacyreta, Inc. shall be at 251 North Illinois Street, Suite 1410, Indianapolis, Indiana 46204; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in the shareholder's name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote at such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by an inspector, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspector, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such inspector. Such inspector may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason the inspector previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector in place of such inspector failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the person to act as inspector at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if the chairman should so determine, the chairman shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than two (2) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which the director's term expires and until the director's successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. The chairman shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for the president by the board of directors or the chairman. The president shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. The vice president and general manager shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for the president and general manager by the board of directors, the chairman or the president. The vice president and general manager shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist in the secretarial duties and shall have such other powers and duties as may be prescribed for such assistant secretary by the board of directors, or be delegated to such assistant secretary by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, those powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and such assistant secretary shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. The treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during the treasurer's term of office. When necessary or proper, the treasurer shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into the treasurer's possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into the treasurer's possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. The treasurer shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. The treasurer shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all the treasurer's transactions as treasurer and of the financial condition of the corporation. The treasurer shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the treasurer's possession or under the treasurer's control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist in the duties of the treasurer, and shall have such other powers and duties as may be prescribed for the assistant treasurer by the board of directors or be delegated to the assistant treasurer by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, those powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and such assistant treasurer shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. The comptroller shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. The comptroller shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. The auditor shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. The auditor shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of the shareholder's shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if the chairman be present, or in the chairman's absence by the president of this corporation if the president be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors from time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.51 45 ARTICLES OF INCORPORATION OF POWER EQUIPMENT SUPPLY CO. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "Power Equipment Supply Co." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in utility and industrial salvage service. To buy, sell or deal in utility or industrial scrap or salvage materials. To erect, install, dismantle, salvage and scrap new or used electric utility supplies, material and equipment; (b) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; (c) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, covenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana; (d) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; (e) To manufacture, assemble, buy, lease, rent or otherwise acquire, sell, exchange, mortgage, lease or otherwise dispose of, store, repair, operate, export, import and generally deal in and with, machines, and machinery, as well as apparatus, equipment, devices and appliances of every kind and description, and all the parts, supplies and accessories therefor, and to promote, operate and manage for others all of the foregoing, or any of them; (f) To purchase, subscribe for, or otherwise acquire and own, hold, use, sell, assign, transfer, mortgage, pledge, exchange, or otherwise dispose of real and personal property of every kind, including shares of stock, bonds, debentures, notes, evidences of indebtedness, and other securities, contracts, or obligations of any corporation or corporations, association or associations, partnership or partnerships, governments or other legal entities, domestic or foreign, and to pay in whole or in part in cash or by exchanging stocks, bonds, or other evidences of indebtedness or securities of this or any other corporation, and while the owner or holder of any real or personal property, stocks, bonds, debentures, notes, evidences of indebtedness or other securities, contracts, or obligations, to receive, collect, and dispose of the interest, dividends and income arising from the property, and to possess and exercise in respect of the same, all the rights, powers and privileges of ownership, including all voting powers on any stocks so owned; (g) To aid either by loans or by guaranty of securities or in any other manner, any individual, association, partnership or corporation, government or other legal entity, domestic or foreign, any shares of stock, or any bonds, debentures, evidences of indebtedness or other securities of which are held by this Corporation or in which it shall have any interest, and to do any acts designed to protect, preserve, improve, or enhance the value of any property at any time held or controlled by this Corporation or in which it at that time may be interested; (h) To enter into, make, perform, and carry out contracts of any kind for any lawful purpose with any individual, association, partnership or corporation, government or other legal entity; (j) To purchase, acquire, lease, own, and enjoy any other property, real and personal, as may be reasonably necessary for the carrying on of the business of the Corporation; (j) To acquire (by purchase, exchange, lease, hire or otherwise), own, hold, develop, operate, sell, lease, assign, transfer, convey, exchange, mortgage, pledge, or otherwise dispose of, or encumber, and to aid and subscribe toward the acquisition, development or improvement of, or to turn to account, and convey, real and personal property, of every class and description, and rights and privileges therein, in the State of Indiana or elsewhere; and (k) To buy, lease, or otherwise acquire, so far as may be permitted by law, the whole or any part of the business, good will and assets of any person, firm, association or corporation (either foreign or domestic), suitable, convenient, advantageous or necessary for the business of the Corporation; and generally, as principal or agent, to institute, enter into, carry on, assist, promote and participate in financial, commercial, mercantile and other business, works, contracts, undertakings and operations. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Preferred Stock, $100 par value. The designations, relative rights, preferences, qualifications, limitations and restrictions (other than voting rights) which shall attach to said Cumulative Preferred Stock and Common Stock, respectively, shall be as hereinafter provided. B. Preferred Stock. The Corporation shall have the right to issue the Cumulative Preferred Stock in series, each of which series shall have such designation and such relative rights, preferences, qualifications, limitations and restrictions as are stated or expressed in these Articles of Incorporation, and, to the extent permitted by these Articles of Incorporation, as are determined and stated by the Board of Directors or a committee thereof in and by the resolution or resolutions authorizing the issue of shares of such series. All shares of the Cumulative Preferred Stock shall be of equal rank and shall be identical, except in respect of the particulars that may be fixed by the Board of Directors as hereinafter in this ARTICLE V (B) provided, and in respect of the voting rights which shall be as provided for in ARTICLE V (B) (iii) hereof; and each share of each series shall be identical in all respects with the other shares of such series, except as to the dates from which dividends thereon shall be cumulative. Shares of Cumulative Preferred Stock shall be issued only as fully paid and nonassessble shares. (i) Grant of Authority to Board of Directors: Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series, in respect of the matters set forth in the following subparagraphs designated (a) to (h), both inclusive: (a) The designation of the series and the number of shares which shall constitute such series, which number may be varied from time to time by like action of the Board of Directors or a committee thereof. (b) The annual rate of dividends payable on shares of such series and the date from which dividends on all shares of such series issued prior to the record date for the first dividend on shares of such series shall be cumulative. (c) The dates on which dividends, if declared, shall be payable, which shall be quarterly. (d) The price or prices per share at which the shares of such series shall be redeemable, which price shall not in the case of any series be more than one hundred twelve percentum (112%) of the par value thereof, plus accrued dividends to the date of redemption. (e) Whether or not the shares of such series shall be entitled to the benefits of a sinking fund to be applied to the purchase or redemption of shares of such series, and if such sinking fund is to be established, the terms and provisions governing the operation thereof. Installments for any such sinking fund may be made payable in priority to any dividends upon any stock of the Corporation which is junior to the Cumulative Preferred Stock with respect to preference as to dividends or assets (such stock being herein commonly referred to as "junior to" or "ranking junior to" the Cumulative Preferred Stock). (f) Whether or not the shares of such series shall be made convertible into or exchangeable for shares of any other class or of any other series of the same class of shares of the Corporation, and if made convertible or exchangeable, the conversion price or prices, or the rates of exchange, and the adjustments, if any, at which such conversion or exchange may be made. (g) The amount payable on shares of such series in the event of any dissolution, liquidation or winding up of the affairs of the Corporation, which amount may differ in the case of a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation. (h) Any other rights (other than voting rights), preferences, qualifications, limitations and restrictions in respect of shares of such series, which are not in conflict with the rights (other than voting rights), preferences, qualifications, limitations and restrictions expressly provided in this ARTICLE V (B) (i). (ii) General Provisions: The following provisions shall apply to all the Cumulative Preferred Stock of the Corporation irrespective of series: (a) The record holders of the Cumulative Preferred Stock of each series, in preference to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, shall be entitled to receive, when and as declared by the Board of Directors, cash dividends in lawful money of the United States at the rate fixed for such series, and no more. Such dividends shall be paid to shareholders of record on the respective dates, not exceeding twenty (20) days prior to such payment dates, fixed by the Board of Directors for such purpose. Such dividends shall be cumulative, in the case of shares of each particular series: (I) if issued prior to the record date for the first dividend on shares of such series, then from the date fixed for the purpose by the Board of Directors as provided in this ARTICLE V (B); (II) if issued during the period commencing immediately after the record date for a dividend on shares of such series and terminating at the close of the payment date for such dividend, then from such dividend payment date; and (III) otherwise from the quarterly dividend payment date next preceding the date of issue of such shares. No dividend shall be paid upon, or declared or set apart for payment upon, any share of Cumulative Preferred Stock of any series for any quarterly dividend period unless at the same time a like proportionate dividend for the same quarterly dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon, or declared and set apart for payment upon, all shares of Cumulative Preferred Stock of all series then issued and outstanding and entitled to receive such dividend. In no event, so long as any shares of Cumulative Preferred Stock shall be outstanding, shall any dividend, whether in cash or property, be paid or declared, or shall any distribution be made on any class of stock of the Corporation ranking junior to the Cumulative Preferred Stock, or shall any shares of any such junior stock be purchased, redeemed or otherwise acquired for value by the Corporation, unless all dividends on the Cumulative Preferred Stock of all series for all past quarterly dividend periods and for the current dividend period shall have been paid or declared and a sum sufficient for the payment thereof set apart for payment. The provisions of the immediately preceding sentence shall not, however, apply to a dividend with respect to any such junior stock, payable in any class of stock ranking junior to the Cumulative Preferred Stock, or to the acquisition of shares of any such junior stock in exchange for, or through application of the proceeds of the sale of, shares of any such junior stock. Subject to the foregoing and to the provisions of ARTICLE V (C), and to any further limitations prescribed in accordance with the provisions of subdivision (i) (h) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), the Board of Directors may declare, out of any funds legally available therefor, dividends upon the then outstanding shares of any class of stock ranking junior to the Cumulative Preferred Stock, and no holders of shares of Cumulative Preferred Stock of any series shall be entitled to share therein. (b) In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any class of stock ranking junior to the Cumulative Preferred Stock, the holders of the Cumulative Preferred Stock shall be entitled to be paid in full the respective amounts fixed in accordance with the provisions of subdivision (i) (g) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with a sum, in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such shares became cumulative to and including the date fixed for such distribution or payment, less the aggregate amount of all dividends which have theretofore been paid thereon or for which moneys for payment in full have been set apart and remain available for payment. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock, or moneys made available for such payment in full, the remaining assets and funds of the Corporation shall be distributed among the holders of the classes of stock ranking junior to the Cumulative Preferred Stock, according to their respective rights and preferences and in each case according to their respective shares. If, upon any dissolution, liquidation or winding up of the affairs of the Corporation, the assets available are not sufficient to pay in full the amounts so payable to the holders of all outstanding shares of Cumulative Preferred Stock, the holders of all series of Cumulative Preferred Stock shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a reorganization of the Corporation alone, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. (c) The Cumulative Preferred Stock of any series may be redeemed, as a whole or in part, at the option of the Corporation by vote of its Board of Directors, at any time or from time to time, at the applicable redemption price for such series fixed in accordance with the provisions of subdivision (i) (d) under "Grant of Authority to Board of Directors" in this ARTICLE V (B), together with an amount (hereinafter referred to as "accrued dividends to the redemption date") in the case of each share, computed at the annual dividend rate for the series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date of redemption, less the aggregate amount of all dividends which have theretofore been paid thereon or for which monies for payment in full have been set apart and remain available for payment. If less than all the outstanding shares of Cumulative Preferred Stock of any series are to be redeemed, the shares to be redeemed shall be determined by lot in such manner as the Board of Directors may prescribe. Notice of every redemption of Cumulative Preferred Stock shall specify (a) the date of redemption, (b) the designation of the series of Cumulative Preferred Stock to be redeemed, (c) if less than all the outstanding Cumulative Preferred Stock of such series is called for redemption, appropriate specifications of the shares to be redeemed as determined by the Board of Directors, (d) the place of redemption of such series, and (e) the redemption price of the shares to be redeemed. Copies of such notice shall be mailed, addressed to the holders of record of the shares to be redeemed at their respective addresses as they shall appear on the stock books of the Corporation (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for such redemption) and such notice shall also be published once each week for at least two successive weeks (in each case on any business day of the week) in one daily newspaper printed in the English language and published and of general circulation in the City of Chicago, Illinois, and in one daily newspaper printed in the English language and published and of general circulation in the Borough of Manhattan, The City of New York, State of New York, the first publication in each such newspaper and such mailing to be at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption. If notice of redemption shall have been duly published and if, on or before the redemption date specified in the notice, all funds necessary for the redemption shall have been deposited in trust with a bank or trust company of the character described in the immediately succeeding sentence and designated in the notice of redemption, for the pro rata benefit of the holders of the shares so called for redemption, so as to be and continue to be available therefor, then, from and after the date of redemption so designated, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding, the dividends thereon shall cease to accumulate, and all rights with respect to the shares of Cumulative Preferred Stock so called for redemption shall forthwith on the redemption date cease and terminate, except only the right of the holders thereof to receive the redemption price of the shares so redeemed, including accrued dividends to the redemption date, but without interest. The Corporation may also, at any time prior to the redemption date specified in the notice of redemption, deposit in trust, for the account of the holders of the Cumulative Preferred Stock to be redeemed, with a bank or trust company in good standing, organized under the laws of the United States of America or of the State of Illinois, doing business in the City of Chicago, Illinois, having capital, surplus and undivided profits aggregating at least two million dollars ($2,000,000), designated in the notice of redemption, all funds necessary for the redemption, and deliver irrevocable written instructions authorizing such bank or trust company, on behalf and at the expense of the Corporation, to cause notice of redemption to be duly mailed and publication of the notice to be made as herein provided promptly upon receipt of such irrevocable instructions. Thereupon, notwithstanding that any certificate for shares of Cumulative Preferred Stock so called for redemption shall not have been surrendered for cancellation, all shares of Cumulative Preferred Stock with respect to which the deposit shall have been made shall no longer be deemed to be outstanding, and all rights with respect to such shares of Cumulative Preferred Stock shall forthwith, upon such deposit in trust accompanied by irrevocable instructions as provided above, cease and terminate except only the right of the holders thereof to receive from such bank or trust company, at any time after the time of the deposit, the redemption price, including accrued dividends to the redemption date, but without interest, of the shares so to be redeemed, and the right to exercise, on or before the date fixed for redemption, privileges of conversion or exchange, if any, not theretofore expiring. Any moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) which shall not be required for the redemption because of the exercise of any such right of conversion or exchange subsequent to the date of the deposit shall be repaid to the Corporation forthwith. Any other moneys deposited by the Corporation pursuant to this subparagraph (ii) (c) and unclaimed at the end of six years from the date fixed for redemption shall be repaid to the Corporation upon its request expressed in a resolution of its Board of Directors, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for the payment thereof. (iii) Voting Rights of Cumulative Preferred Stock: (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B) (iii); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) The Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) The Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (iii) (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) For the purpose of ARTICLE V (c) of these Articles of Incorporation, the Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity; and (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Common Stock. 1. After the requirements with respect to preferential dividends on Preferred Stock (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of Section B of this ARTICLE V) and subject further to any other conditions which may be fixed in accordance with the provisions of Section B of this ARTICLE V, then, but not otherwise, the holders of Common Stock shall be entitled to receive such dividends, if any, as may be declared from time to time by the Board of Directors. 2. After distribution in full of the preferential amount (fixed in accordance with the provisions of Section B of this ARTICLE V), if any, to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to shareholders, ratably in proportion to the number of shares of Common Stock held by each. 3. Except as may otherwise be required by law or these Articles of Incorporation, each holder of Common Stock shall have one vote in respect of each share of Common Stock held by such holder on each matter voted upon by the shareholders and any such right to vote shall not be cumulative. D. Other Provisions. 1. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. 2. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 3. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 4. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Jon D. Noland, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator Jon D. Noland______________________ Jon D. Noland DATED: Jan. 22, 1990 This instrument prepared by: Greg K. Kimberlin Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.52 46 By-laws of Power Equipment Supply Co. ARTICLE I. OFFICES. SECTION 1. The principal office of the Power Equipment Supply Co. shall be at 1000 East Main Street, in the town of Plainfield, county of Hendricks and state of Indiana; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the town of Plainfield, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. Voting for directors and, upon the demand of any shareholder, voting upon any other question shall be by ballot. On any vote by ballot, each ballot voted shall be signed either by the shareholder voting the same, or, if the proxy of such shareholder is on file with the secretary and unrevoked, by the duly appointed agent or attorney of such shareholder. The ballot of each shareholder voting shall be deemed to be a vote of all the shares owned of record by such shareholder and entitled to be voted on the matter unless such shareholder or his duly appointed agent or attorney shall designate on such ballot that a lesser number of shares are voted. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. To be properly brought before the annual meeting, business must be either (a) specified in the notice of the annual meeting (or any supplement thereto) given by or at the direction of the board, (b) otherwise properly brought before the annual meeting by or at the direction of the board, or (c) otherwise properly brought before the annual meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the close of business on the fifteenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A shareholder's notice to the secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting, (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business, at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class and number of shares of the corporation which are beneficially owned by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. Such nominations, other than those made by or at the direction of the board, shall be made pursuant to timely notice in writing to the secretary of the corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than fifty days nor more than seventy-five days prior to the annual meeting; provided, however, that in the event that less than sixty-five days' notice or prior public disclosure of the date of the annual meeting is given or made to shareholders, notice to the secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation which are beneficially owned by the person, (iv) a written statement that the person is willing to serve as a director filed with the secretary at least five (5) days prior to the date of the annual meeting and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and record address of the shareholder, and (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as director of the corporation. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth herein. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than three (3) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. SECTION 10. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate not less than three of their number who shall not be officers of the corporation, to constitute an audit committee. Such committee shall recommend the appointment of independent certified public accountants annually to audit the books and records of the corporation; shall receive and examine the audit reports of such independent certified public accountants; shall inquire into the effectiveness of the corporation's financial and accounting functions and controls; and may make appropriate reports and other related recommendations to the board of directors. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman, the president or a vice president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. He shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for him by the board of directors or the chairman. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The vice president and general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. He shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the vice president and general manager of a corporation, and such further duties as may be prescribed for him by the board of directors, the chairman or the president. He shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the vice president and general manager, the powers and duties of the vice president and general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors, or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. He shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. He shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. He shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist the secretary in his duties and shall have such other powers and duties as may be prescribed for him by the board of directors, or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, his powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during his term of office. When necessary or proper, he shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into his possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into his possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. He shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. He shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all his transactions as treasurer and of the financial condition of the corporation. He shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist the treasurer in his duties, and shall have such other powers and duties as may be prescribed for him by the board of directors or be delegated to him by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, his powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and he shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. He shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. He shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. He shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. He shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.B.53 47 ARTICLES OF INCORPORATION OF POWER INTERNATIONAL, INC. The undersigned, desiring to form a corporation for profit under Sections 1701.01 et seq. of the Ohio Revised Code, does hereby certify: FIRST: The name of the corporation shall be Power International, Inc. (the "Corporation"). SECOND: The principal office of the Corporation in the State of Ohio is to be located in the City of Cincinnati, County of Hamilton. THIRD: The purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be formed under the General Corporation Law of the State of Ohio. FOURTH: The number of shares which the Corporation is authorized to have outstanding is Seven Hundred and Fifty (750), all of which shall be common shares without par value. FIFTH: To the extent permitted by law, the Corporation may, from time to time, pursuant to authorization of the Board of Directors and without action by the shareholders, purchase or otherwise acquire shares of any class, bonds, debentures, notes, script, warrants, obligations, evidences of indebtedness, or other securities of the Corporation (or any other corporation) in such manner, upon such terms, and in such amounts as the Board of Directors may determine. SIXTH: No transaction between the Corporation and any other corporation shall in any way be affected or invalidated by the fact that any Director of the Corporation has an interest in such other corporation, including being a director or officer of such corporation, provided that the fact that the interest exists shall be disclosed or shall have been known to the Board of Directors, or a majority thereof; any director of the Corporation who has such an interest may be counted in determining the existence of a quorum at any meeting of the Board of Directors of the Corporation which shall authorize such transactions, and may vote thereat to authorize such transaction, with like force and effect as if such Director were not so interested. SEVENTH: No holders of shares of the Corporation shall have any pre-emptive right to subscribe for or to purchase any shares of the Corporation of any class, whether such shares or such class be now or hereafter authorized. EIGHTH: Any amendment hereto, including any that could be adopted by the Board of Directors of the Corporation, may be adopted at a meeting of shareholders held for such purpose by the affirmative vote of the holders of shares entitled to exercise a majority of the voting power of the Corporation on such proposal. IN WITNESS WHEREOF, the undersigned has executed these Articles of Incorporation this 21st day of October, 1992. /s/ James J. Mayer______________ James J. Mayer Incorporator EX-99.B.54 48 CODE OF REGULATIONS OF POWER INTERNATIONAL, INC. ARTICLE I Offices Section 1. Offices. The location of the Corporation's principal office shall be in the City of Cincinnati, County of Hamilton, State of Ohio. The Corporation may, in addition to its principal office in the State of Ohio, establish and maintain an office or offices elsewhere in Ohio and in such other states and places as the Board of Directors may from time to time find necessary or desirable, at which the books, documents and papers of the Corporation may be kept. ARTICLE II Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders shall be held at the principal office of the Corporation in Cincinnati, Ohio, on the first Wednesday in May, if not a legal holiday, and if a legal holiday, then on the next succeeding business day, for the election of directors, the consideration of the reports to be laid before the meeting and the transaction of such other business as may be brought before the meeting. Section 2. Notice of Annual Meeting. Notice of the annual meeting shall be given in writing to each shareholder entitled to vote thereat, at such address as appears on the records of the Corporation at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 3. Special Meetings. Special meetings of the shareholders may be called at any time by the President or a Vice- President or by a majority of the members of the Board of Directors acting with or without a meeting or by the persons who hold twenty- five (25) per cent of all the shares outstanding and entitled to vote thereat, upon notice in writing, stating the time, place and purpose of the meeting. Business transacted at all special meetings shall be confined to the objects stated in the call. Section 4. Notice of Special Meeting. Notice of special meeting, in writing, stating the time, place and purpose thereof, shall be given to each shareholder entitled to vote thereat, at least ten (10) days and not more than forty-five (45) days prior to the meeting. Section 5. Waiver of Notice. Notice of the time, place and purpose of any meeting of shareholders may be waived by the written assent of every shareholder entitled to notice, filed with or entered upon the records of the meeting, either before or after the holding thereof. Section 6. Action Without Meeting. Any action which, under any provision of the General Corporation Law of Ohio, or the Articles, or the Regulations, may be taken at a meeting of the Shareholders, may be taken without a meeting if authorized by a writing signed by all the holders of shares who would be entitled to notice of meeting for such purpose. Section 7. Quorum. The holders of shares entitling them to exercise a majority of the voting power, present in person or by proxy at any meeting of the shareholders, unless otherwise specified by law, shall constitute a quorum. If, however, at any meeting of the shareholders, a quorum shall fail to attend in person or by proxy, a majority in interest of the shareholders attending in person or by proxy at the time and place of such meeting may adjourn the meeting from time to time without further notice, other than by announcement at the meeting at which such adjournment is taken, until a quorum shall be present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. Section 8. Voting. At each meeting of the shareholders, except as otherwise provided by statute or the Articles of Incorporation, every holder of record of stock entitled to vote at such meeting shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting unless some other definite period of validity shall be expressly provided therein. Each shareholder shall have one (1) vote for each share of such stock having voting power, standing in his name on the books of the Corporation. Cumulative voting shall be permitted only as expressly required by statute. At any meeting of shareholders, a list of shareholders entitled to vote, alphabetically arranged, showing the number and classes of shares held by each on the date fixed for closing the books against transfers or the record date fixed as hereinbefore provided (or if no such date has been fixed, then on the date of the meeting) shall be produced on the request of any shareholder, and such list shall be prima facie evidence of the ownership of shares and of the right of shareholders to vote, when certified by the Secretary or by the agent of the Corporation having charge of the transfer of shares. Section 9. Inspectors of Election. Whenever any persons present and entitled to vote at a meeting of Shareholders shall request the appointment of inspectors of election, the officer or person acting as Chairman of any such meeting shall appoint three inspectors who need not be shareholders. If the right of any person to vote at any such meeting shall be challenged, the inspectors of election shall determine such right. The inspectors shall receive and count the votes either upon an election or for the decision of any question and shall determine the result. the decision, act or certificate of a majority of such inspectors on any vote shall be effective in all respects as the decision, act or certificate of all of them and shall be prima facie evidence of the facts stated therein and of the vote as certified by them thereof. ARTICLE III Board of Directors Section 1. Number of Directors, Tenure, Vacancies. Except as otherwise provided by statute, all the corporate powers, business and property of the Corporation shall be exercised, conducted and controlled by a Board of three (3) Directors, who need not be shareholders. Each member of the Board of Directors shall be of age and a citizen of the United States, and at least one shall be a citizen of the State of Ohio. The directors shall be elected annually and each director shall continue in office until the annual meeting held next after his election, and until his successor shall have been elected and qualified. Any member of the Board of Directors may resign at any time by giving written notice to the President or to the Secretary of the Corporation. All vacancies occurring in the Board of Directors, may be filled by the remaining directors at any stated or special meeting. A director thus elected to fill any vacancy shall hold office for the unexpired term of his predecessor and until his successor is elected and qualifies. Any director may be removed at any time by the affirmative vote of a majority of the stock then issued and entitled to vote at a special meeting of shareholders called for the purpose. Section 2. Annual Organization Meeting. Immediately after each annual election, the newly-elected directors may meet forthwith (either within or without the State of Ohio) for the purpose of organization, the election of officers and the trans- action of other business. If a majority of the directors be then present no prior notice of such meeting shall be required to be given. The place and time of such first meeting may, however, be fixed by written consent of a majority of the directors, or by three (3) days written notice given by the Secretary of the Corporation. Section 3. Regular Meetings. Regular meetings of the Board of Directors may be held at any reasonable time and place (either within or without the State of Ohio), and upon such notice, as the Board of Directors may from time to time determine. Section 4. Special Meetings. Special meetings of the Board of Directors may be called by the President or any Vice-President and must be called by the written request of two (2) members of the Board of Directors. Section 5. Notice of Meetings. Notice of meetings shall be given to each director in accordance with Article X, Section 1, of these Regulations. Section 6. Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business, but a majority of those present at the time and place of any meeting, although less than a quorum, may adjourn the same from time to time, without notice, until a quorum be had. The act of a majority of the Directors present at any such meeting, at which a quorum is present shall be the act of the Board of Directors. Section 7. Compensation of Directors. Each director of the Corporation (other than directors who are salaried officers of the Corporation or any of its affiliates) shall be entitled to receive as compensation for services such amounts as may be determined from time to time by the Board of Directors in form either in fees for attendance at the meeting of the Board of Directors, or by payment at the rate of a fixed sum per month or both. The same payment may also be made to any one other than a director officially called to attend any such meeting. Section 8. Executive Committee. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate annually three (3) or more of their number, to constitute an Executive Committee, and may delegate to such committee power to exercise in the intervals between the meetings of the Board of Directors the powers of the Board in the management of the business and affairs of the Corporation. Each member of the Executive Committee shall continue to be a member thereof only during the pleasure of a majority of the whole Board. The Executive Committee may act by a majority of its members at a meeting or by a writing signed by all of its members. All action by the Executive Committee shall be reported to the Board of Directors at its meeting next succeeding such action. Non-employee members of such Executive Committee shall be entitled to receive such fees and compensation as the Board of Directors may determine. Section 9. Other Committees. The Board of Directors may also appoint such other standing or temporary committees from time to time as they may see fit, delegating to such committees all or any part of their own powers. The members of such committees shall be entitled to receive such fees as the Board may determine. ARTICLE IV Officers Section 1. Officers. The officers of the Corporation shall be elected by the Board of Directors and consist of a President, one or more Vice-Presidents, a Secretary, a Treasurer and such Assistant Secretaries, Assistant Treasurers and such other officers and agents, as from time to time, may be determined upon by the Board of Directors. Such officers shall hold office at the pleasure of the Board of Directors or and until their successors are chosen and qualified. The Board of Directors may, at its option, elect a Chairman of the Board. Any two of the offices of Vice-President, Secretary and Treasurer may be combined in one person. All vacancies occurring among any of the above offices shall be filled by the Board of Directors. Any officer may be removed with or without cause at any time by the affirmative vote of two-thirds of the number of directors at a special meeting of the Board of Directors called for the purpose. Section 2. Subordinate Officers. The Board of Directors may appoint such other officers and agents with such powers and duties as they shall deem necessary. Section 3. Chairman of the Board. The Chairman of the Board, if there is one elected as herein provided, shall be a director and shall preside at all meetings of the Board of Directors and shall, subject to their direction and control, be their representative and medium of communication, and shall perform such duties as may from time to time be assigned to him by the Board of Directors. Section 4. President. The President shall be a director and shall be the chief executive officer of the Corporation. He shall preside at all meetings of the shareholders and, in the absence or inability to act of the Chairman of the Board, if there be one, at all meetings of the Board of Directors. He shall have general and active management of the business of the Corporation, shall see that all orders and resolutions of the Board of Directors and of the Executive Committee are carried into effect, shall be ex officio a member of all standing committees, and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall submit a report of the operations of the Corporation for the fiscal year to the shareholders at their annual meeting and from time to time shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their notice. Section 5. Vice-Presidents. The Vice-Presidents shall perform such duties as the Board of Directors shall, from time to time, require. In the absence or incapacity of the President, the Vice-President designated by the President or Board of Directors or Executive Committee shall exercise the powers and duties of the President. Section 6. Secretary. The Secretary shall attend all meetings of the Board of Directors, of the Executive Committee and of the shareholders and act as clerk thereof and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. He shall see that proper notice is given of all meetings of the shareholders of the Corporation and of the Board of Directors and shall perform such other duties as may be prescribed from time to time by the Board of Directors or by the President. Assistant Secretaries. At the request of the Secretary, or in his absence or inability to act, the Assistant Secretary or, if there be more than one, the Assistant Secretary designated by the Secretary, shall perform the duties of the Secretary and when so acting shall have all the powers of and be subject to all the restrictions of the Secretary. The Assistant Secretaries shall perform such other duties as may from time to time be assigned to them by the President, the Secretary, or the Board of Directors. Section 7. The Treasurer. The Treasurer shall be the financial officer of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall deposit all moneys and other valuables in the name and to the credit of the Corporation, in such depositories as may be directed by the Board of Directors, shall disburse the funds of the Corporation as may be ordered by the Board of Directors or by the President, taking proper vouchers therefor, and shall render to the President and directors at all regular meetings of the Board, or whenever they may require it, and to the annual meeting of the shareholders, an account of all his transactions as Treasurer and of the financial condition of the Corporation. He shall also perform such other duties as the Board of Directors may from time to time require. If required by the Board of Directors he shall give the Corporation a bond in a form and in a sum with surety satisfactory to the Board of Directors for the faithful performance of the duties of his office and the restoration to the Corporation in the case of his death, resignation or removal from office of all books, papers, vouchers, money and other property of whatever kind in his possession belonging to the Corporation. Assistant Treasurers. At the request of the Treasurer, or in his absence or inability to act, the Assistant Treasurer or, if there be more than one, the Assistant Treasurer designated by the Treasurer, shall perform the duties of the Treasurer and when so acting shall have all the powers of and be subject to all the restrictions of the Treasurer. The Assistant Treasurers shall perform such other duties as may from time to time be assigned to them by the President, the Treasurer, or the Board of Directors. Section 8. Absence or Inability of Officer to Act. In the case of absence or inability to act of any officer of the Corporation, and of any person herein authorized to act in his place, the Board of Directors may from time to time delegate the powers or duties of such Officer to any other Officer or any Director or other person whom they may select. ARTICLE V Indemnification of Directors, Officers, Employees, and Agents Section 1. Indemnification of Directors, Officers, Employees, and Agents. (A) The Corporation shall indemnify or agree to indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. (B) The Corporation shall indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any of the following: (1) Any claim, issue, or matter as to which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that the court of common pleas, or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper. (2) Any action or suit in which the only liability asserted against a director is pursuant to Section 1701.95 of the Revised Code. (C) To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the foregoing paragraphs of this Article, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses, including attorney's fees, actually and reasonably incurred by him in connection with the action, suit, or proceeding. (D) Any indemnification under Paragraphs (A) and (B) of Section 1 of this Article, unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such Paragraphs (A) and (B). Such determination shall be made as follows: (1) by a majority vote of a quorum consisting of directors of the indemnifying Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding; (2) if the quorum described in (D)(1) of this Section is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Corporation or any person to be indemnified within the past five years; (3) by the shareholders; or (4) by the court of common pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under (D)(1) of this Section or by independent legal counsel under (D)(2) of this Section shall be promptly communicated to the person who threatened or brought the action or suit by or in the right of the Corporation under (B) of this Section, and within 10 days after receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination. Section 2. Advances for Litigation Expenses may be Made. Expenses, including attorney's fees, incurred by a director, trustee, officer, employee, or agent in defending any action, suit, or proceeding referred to in Section 1 of this Article, may be paid by the Corporation as they are incurred in advance of the final disposition of the action, suit, or proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the Corporation. Section 3. Indemnification Nonexclusive. The indemnification provided by this Article shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under these Regulations, any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. Section 4. Indemnity Insurance. The Corporation may purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit, or self-insurance, on behalf of or for any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under this Section. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest. Section 5. Payments of Expenses Not Limited. The indemnification provided by Sections 1.(A) and (B) of this Article does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to Sections 2, 3, and 4 of this Article. Sections 1(A) and (B) of this Article do not create any obligation to repay or return payments made by the Corporation pursuant to Sections 2, 3, or 4 of this Article. Section 6. Survival of Indemnification. As used in this Article, references to "Corporation" include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, officer, employee, or agent of such a constituent corporation, or is or was serving at the request of such constituent corporation as a director, trustee, officer, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, joint venture, trust, or other enterprise, shall stand in the same position under this Article with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. ARTICLE VI Capital Stock Section 1. Form and Execution of Certificates. The certificates for shares of the capital stock of the Corporation shall be of such form and content, not inconsistent with the law and the Articles of Incorporation, as shall be approved by the Board of Directors. The certificates shall be signed by the President or a Vice-President and also by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer. All certificates shall be consecutively numbered in each class of shares. The name and address of the person owning the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the Corporation's books. Section 2. Transfer of Shares. Transfer of shares shall be made upon the books of the Corporation and before a new certificate is issued the old certificates shall be surrendered for cancellation. Section 3. Closing of Transfer Books or Taking Record of Shareholders. The Board of Directors may fix a time not exceeding forty-five (45) days preceding the date of any meeting of shareholders or any dividend payment date or any date for the allotment of rights as a record date for the determination of the shareholders entitled to notice of such meeting or to vote thereat or to receive such dividends or rights as the case may be; or the Board of Directors may close the books of the Corporation against transfer of shares during the whole or any part of such period. Section 4. Lost Stock Certificates. In the case of a lost stock certificate a new stock certificate may be issued in its place upon proof of such loss, destruction or mutilation and upon the giving of a satisfactory bond of indemnity to the Corporation and/or to the transfer agent and registrar of such stock, if any, in such sum and under such terms as the Board of Directors may provide. ARTICLE VII Dividends Section 1. Dividends. Dividends may be declared by the Board of Directors and paid in cash, shares, or other property out of the annual net income of the Corporation or out of its net assets in excess of its capital, computed in accordance with the state statutes and subject to the conditions and limitations imposed by the Articles of Incorporation. Before payment of any dividends or making distribution of any profits there may be set apart out of the excess of assets available for dividends such sum or sums as the Board of Directors from time to time in their absolute discretion think proper as a reserve fund for any proper purpose. ARTICLE VIII Fiscal Year Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and terminate on the thirty-first day of December in each year. ARTICLE IX Contracts, Checks, Notes, etc. Section 1. Contracts, Checks, Notes, etc. All contracts and agreements authorized by the Board of Directors and all deeds, mortgages, bonds and notes shall, unless otherwise directed by the Board of Directors or unless otherwise required by law, be signed by (1) either the President or a Vice-President and (2) any one of the following officers: Secretary or Assistant Secretary, Treasurer or Assistant Treasurer. The Board of Directors may by resolution adopted at any meeting designate officers of the Corporation who may in the name of the Corporation execute checks, drafts and orders for the payment of money in its behalf and, in the discretion of the Board of Directors, such officers may be so authorized to sign such checks singly without necessity for counter-signature. ARTICLE X Notice and Waiver of Notice Section 1. Notice and Waiver of Notice. Any notice required to be given by these Regulations to a director or officer may be given in writing, personally served or through the United States Mail, or by telephone, telecopy, telegram, cablegram or radiogram, and such notice shall be deemed to be given at the time when the same shall be thus transmitted. Any notice required to be given by these Regulations may be waived by the person entitled to such notice. ARTICLE XI Amendment Section 1. Amendment. These Regulations may be amended or repealed at any meeting of the shareholders of the Corporation by the affirmative vote of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise two-thirds of the voting power on such proposal. EX-99.B.55 49 ARTICLES OF INCORPORATION OF WHOLESALE POWER SERVICES, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Act as amended (hereinafter referred to as to the "Act"), executes the following Articles of Incorporation: ARTICLE I Name The name of the Corporation is: "Wholesale Power Services, Inc." ARTICLE II Purposes The purposes for which the Corporation is formed are: (a) To engage in the business of brokering power, emission allowances, electricity futures and related products and services and provide consulting services in the wholesale power related markets as well as the marketing of the Electronic Bulletin Board "IPEX"; (b) To engage in the construction, operation, development or ownership of cogenerating facilities or power production facilities; (c) To enter into joint ventures or partnership agreements; and (d) To engage in any other lawful energy or functionally related business permitted to a corporation organized under the Act; and (e) To carry on the business of the Corporation either within or beyond the limits of the State of Indiana, and, in general, to do and perform any and all things necessary, convenient or proper for the carrying out or accomplishment of the objects or purposes specified in this ARTICLE II, or any of them, or any objects or purposes incidental thereto, and to possess and enjoy all of the rights, powers, privileges, authority and immunities which may be granted to bodies corporate under the Act and the laws of the State of Indiana. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office A. Resident Agent. The name and address of the Corporation's Resident Agent for service of process is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. B. Principal Office. The post office address of the principal office of the Corporation is 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE V Authorized Number of Shares A. Authorized Capital Shares. The aggregate number of shares which the Corporation shall have the authority to issue shall be 120,000,000 shares, of which 100,000,000 shares shall be Common Stock, without par value, and 20,000,000 shares shall be Cumulative Preferred Stock, $100 par value. Shares of the Common Stock may be issued from time to time as the Board of Directors shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors. Authority is hereby expressly granted to the Board of Directors or a committee thereof to authorize the issue of shares of Cumulative Preferred Stock in one or more series, and to determine and state, by the resolution or resolutions authorizing the issue of each series of Cumulative Preferred Stock, the designation of such series and the relative rights (other than voting rights), preferences, qualifications, limitations and restrictions of such series. B. Voting Rights of Cumulative Preferred Stock. (a) At all meetings of the shareholders of the Corporation each record holder of Cumulative Preferred Stock having a par value of $100.00 per share shall be entitled to one vote for each share of such stock so held by him, subject, however, to the following provisions of this ARTICLE V (B); (b) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (b) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is at least two-thirds of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted: (I) Create, authorize or issue shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets or any securities of any kind or class convertible into shares of stock of any class ranking prior to the Cumulative Preferred Stock as to dividends or assets; or (II) Issue any shares of the Cumulative Preferred Stock or shares of stock of any class ranking on a parity with the Cumulative Preferred Stock as to dividends or assets or securities convertible into shares of the Cumulative Preferred Stock or stock on a parity therewith, other than in exchange for or for the purpose of effecting the retirement, by redemption or otherwise, of not less than a like number of shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into not less than a like number of such shares, as the case may be, at the time outstanding, unless: (A) the Net Earnings of the Corporation Available for the Payment of Interest Charges for any twelve consecutive calendar months within the fifteen calendar months immediately preceding the month within which such additional shares of the Cumulative Preferred Stock or shares of stock on a parity therewith or securities convertible into such shares are proposed to be issued, shall have been at least one and one-half times the aggregate of (x) the dividend requirements for a twelve months' period upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior to or on a parity with the Cumulative Preferred Stock as to dividends or assets, to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (y) the interest requirements for a twelve months' period upon all indebtedness of the Corporation to be outstanding after the issuance of the shares or convertible securities proposed to be issued, and (B) the Common Stock Equity shall be not less than the aggregate amount payable on involuntary dissolution, liquidation or winding up of the Corporation upon all shares of the Cumulative Preferred Stock and stock, if any, ranking prior thereto or on a parity therewith, to be outstanding after the issuance of the shares or convertible securities proposed to be issued; or (III) Amend the provisions of these Articles of Incorporation so as to affect adversely any of the preferences or other rights hereby given to the holders of shares of the Cumulative Preferred Stock, provided, however, that if any such amendment would be adverse to the holders of one or more, but less than all, of the series of the Cumulative Preferred Stock at the time outstanding, the affirmative vote hereby required shall be only the affirmative vote by the record holders of each series so adversely affected in such number of votes from each such series as is at least two-thirds of the aggregate number of votes appertaining to such series that would be voted at such meeting if all the then outstanding shares of such series were there voted. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect or when the issuance of any such stock or convertible securities is to be made, as the case may be, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding or, in the case of any such amendment, alteration or repeal as to which the consent of less than all series of the Cumulative Preferred Stock would otherwise be required, for the redemption of all shares of the series of Cumulative Preferred Stock the consent of which would otherwise be required. (c) So long as any shares of the Cumulative Preferred Stock of any series are outstanding, the Corporation (except as otherwise provided in the last sentence of this subparagraph (c)) shall not without, but may with, the affirmative vote by the record holders of the Cumulative Preferred Stock (given at an annual or special meeting) in such number of votes as is a majority of the aggregate number of votes appertaining to the Cumulative Preferred Stock that would be voted at such meeting if all the then outstanding Cumulative Preferred Stock were there voted, merge or consolidate the Corporation with or into any other corporation, merge any other corporation into the Corporation, or sell all or substantially all of the assets of the Corporation, unless such merger, consolidation or sale, or the issuance or assumption of all securities to be issued or assumed in connection therewith, shall have been ordered, approved or permitted by the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, or by any successor commission or other regulatory authority of the United States having jurisdiction in the premises. No such consent of the holders of the Cumulative Preferred Stock shall be required if, at the time of or prior to effecting such sale, lease, conveyance, consolidation or merger, provision is to be made for the redemption of all shares of Cumulative Preferred Stock at the time outstanding. (d) Except when some mandatory provisions of law shall be controlling, whenever shares of two or more series of the Cumulative Preferred Stock are outstanding, no particular series of the Cumulative Preferred Stock shall be entitled to vote as a separate series on any matter and all shares of the Cumulative Preferred Stock of all series shall be deemed to constitute but one class for any purpose for which a vote of the shareholders of the Corporation by classes may now or hereafter be required. (e) The Corporation shall not declare any dividend or make any distribution in request of any stock of this Corporation ranking junior to the Cumulative Preferred Stock as to dividends or assets, other than dividends in shares of junior stock, or purchase or otherwise acquire for value any outstanding shares of junior stock (each such dividend, distribution, purchase or acquisition being herein called a junior stock dividend) in contravention of the following: (1) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on the Common Stock is declared is, or as a result of such dividend would become, less than 20% of Total Capitalization, the Corporation shall not declare such dividends in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 50% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in this subdivision (1) could have been, and have not been, declared; and (2) If and so long as the Common Stock Equity at the end of the calendar month immediately preceding the date on which a dividend on Common Stock is declared is, or as a result of such dividend would become, less than 25% but not less than 20% of Total Capitalization, the Corporation shall not declare dividends on the Common Stock in an amount which, together with all other dividends on the Common Stock paid within the year ending with and including the date on which such dividend is payable, exceeds 75% of the Net Income of the Corporation Available for Dividends on the Common Stock for the twelve full calendar months immediately preceding the calendar month in which such dividends are declared, except in an amount not exceeding the aggregate of dividends on the Common Stock which under the restrictions set forth above in subdivision (1) and in this subdivision (2) could have been, and have not been, declared. (b) As used herein, "Common Stock Equity" shall mean the aggregate of the par value of, or stated capital represented by, the outstanding shares of Common Stock, all earned surplus, capital or paid-in surplus, and any premiums on the Common Stock then carried on the books of the Corporation, less: (1) The excess, if any, of the aggregate amount payable on involuntary liquidation of the Corporation upon all outstanding shares of Cumulative Preferred Stock of the Corporation of all classes over the sum of (i) the aggregate par or stated value of such shares and (ii) any premiums thereon; (2) Any amounts on the books of the Corporation known, or estimated if not known, to represent the excess, if any, of recorded value over original cost of used or useful utility plant; and (3) Any intangible items set forth on the asset side of the balance sheet of the Corporation as the result of accounting convention, such as unamortized debt discount and expense; provided, however, that no deductions shall be required to be made in respect of items referred to in subdivisions (2) and (3) of this paragraph (b) in cases in which such items are being amortized or are provided for, or are being provided for, by reserves. (c) As used herein "Total Capitalization" shall mean the aggregate of: (1) The principal amount of all outstanding indebtedness of the Corporation maturing more than twelve months after the date of issue thereof; and (2) The par value or stated capital represented by, and any premiums carried on the books of the Corporation in respect of, the outstanding shares of all classes of the capital stock of the Corporation, earned surplus, and capital or paid-in surplus, less any amounts required to be deducted pursuant to subdivisions (2) and (3) of paragraph (b) above in the determination of Common Stock Equity. (3) The term "Net Income of the Corporation Available for Dividends on the Common Stock" for any twelve-month period shall mean the Net Earnings of the Corporation Available for the Payment of Interest Charges for such period, less interest charges, amortization charges, other proper income deductions, and dividends, paid or accrued, on all outstanding shares of stock of the Corporation having a preference as to dividends over the Common Stock for such period, all as shall be determined in accordance with such system of accounts as may be prescribed by governmental authorities having jurisdiction in the premises or, in the absence thereof, in accordance with sound accounting practice. C. Other Provisions. 1. No holder of any of the shares of any class or series of stock or securities convertible into such shares of any class or series of stock, or of options, warrants or other rights to purchase or acquire shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase, acquire or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of any class or series, or carrying any right to purchase or acquire stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase or acquire stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion. 2. The Corporation reserves the right to increase or decrease its authorized capital stock, or any class of series thereof, or to reclassify the same and to amend, alter, change or repeal any provision contained in the Articles of Incorporation, or in any amendment thereto, in the manner now or hereafter prescribed by law, but subject to such conditions and limitations as are hereinbefore prescribed, and all rights conferred upon shareholders in the Articles of Incorporation of this Corporation, or any amendment thereto, are granted subject to this reservation. 3. Unless any statute of the State of Indiana shall expressly provide to the contrary and subject to the limitations hereinbefore set forth in this ARTICLE V, the Corporation may acquire, hold and dispose of any shares of its stock of any class heretofore issued and outstanding. ARTICLE VI Directors The number of directors of the Corporation shall be determined in accordance with the By-laws of the Corporation. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in the By-laws, disqualification or removal from office. Any vacancy on the Board of Directors that results from other than an increase in the number of directors may be filled by a majority of the Board of Directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the Board of Directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the Board of Directors if such person shall have attained the age of seventy years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. ARTICLE VII Incorporator The name and post office address of the Incorporator of the Corporation is Cheryl M. Foley, 1000 East Main Street, Plainfield, Indiana 46168. ARTICLE VIII Indemnification Each director and each officer of the Corporation shall be indemnified by the Corporation to the fullest extent permitted by law against expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the defense of any proceeding in which he or she was or is a party or is threatened to be made a party by reason of being or having been a director or an officer of the Corporation. Such right of indemnification is not exclusive of any other rights to which such director or officer may be entitled under any now or hereafter existing statute, any other provision of these Articles, By-laws, agreement, vote of shareholders or otherwise. If the Act of the State of Indiana is amended after approval by the shareholders of this ARTICLE VIII to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Act of the State of Indiana, as so amended. Any repeal or modification of this ARTICLE VIII by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. Incorporator /s/ Cheryl M. Foley____________________ Cheryl M. Foley DATED: Oct. 8, 1992 This instrument prepared by: Frank T. Lewis Attorney at Law 1000 East Main Street Plainfield, Indiana 46168 EX-99.B.56 50 BY-LAWS OF WHOLESALE POWER SERVICES, INC. BY-LAWS OF WHOLESALE POWER SERVICES, INC. ARTICLE I. OFFICES. SECTION 1. The principal office of the PSI Resource Development, Inc. shall be at 1000 East Main Street, Plainfield, Indiana 46168; and the corporation may have such other offices at such other places as the board of directors may from time to time designate, or as the business of the corporation may require. ARTICLE II. SHAREHOLDERS' MEETINGS. SECTION 1. Any meeting of the shareholders may be held at the office of the corporation in the city of Indianapolis, Indiana, or at such other place within or outside the state of Indiana through the use of any means of communication by which all shareholders participating may simultaneously hear each other at the meeting. The place and manner of the meeting shall be specified in the notice of such meeting, or if such meeting is held upon waiver of notice, specified in the waiver of notice signed by all of the shareholders. SECTION 2. All annual meetings of shareholders shall be held at 10:00 A.M. on the third Wednesday of April of each year if not a legal holiday, and if a legal holiday, then on the next succeeding day not a legal holiday, for the purpose of electing directors and for the transaction of such other business as may legally come before the meeting. If for any reason the annual meeting of the shareholders shall not be held at the time and place herein provided, the same may be held at any time thereafter, or the business to be transacted at such annual meeting may be transacted at any special meeting called for that purpose. SECTION 3. Written or printed notice of the annual meeting, stating the place, manner, day and hour of the meeting, shall be delivered or mailed by the secretary or an assistant secretary to each shareholder of record entitled to vote at such meeting, at such address as appears on the records of the corporation, at least ten days, but not more than sixty days, before the date of the meeting. SECTION 4. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, shall be held if called by the chairman, the president or a vice president, by the board of directors, or by the shareholders holding of record such number of the outstanding shares of the corporation as represents not less than one-fourth of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote on the business proposed to be transacted thereat. All requests for special meetings of shareholders shall state the time, manner, place and purpose thereof. Only business within the purpose stated in such request shall be conducted at such meeting. SECTION 5. Written or printed notice of all special meetings of shareholders stating (i) the place, manner, day and hour of the meeting, and (ii) the purpose or purposes for which such meeting is called, shall be delivered or mailed by the secretary, assistant secretary or by the officers or persons calling the meeting to each shareholder of record entitled to vote at such meeting at such address as appears on the records of the corporation, at least ten days before the date of such meeting. SECTION 6. Notice of any meeting of shareholders may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the purpose or purposes for which the meeting is called and the time and place thereof. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting. SECTION 7. Any meeting of the shareholders, the holders of record (present in person or represented by proxy) of such number of the outstanding shares of the corporation as represents a majority of the aggregate number of votes that would be voted at such meeting if there were voted thereat all the outstanding shares entitled to vote at such meeting, shall be requisite to constitute a quorum for the election of directors or for the transaction of other business, unless otherwise provided by law. If, however, the holders of such majority shall not be present or represented at any meeting of the shareholders of the corporation, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the holders of such majority shall be present or represented. At such adjourned meeting at which the holders of such majority shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. SECTION 8. Every shareholder shall have the right at every shareholders' meeting to one vote for each share of stock standing in his name on the books of the corporation, except as otherwise provided by law or by the articles of incorporation and except that no shares shall be voted at any meeting upon which any installment is due and unpaid, or which belongs to the corporation, or which shall have been transferred on the books of the corporation within such number of days, not exceeding seventy, next preceding the date of such meeting as the board of directors shall determine, or, in the absence of such determination, within ten days next preceding the date of such meeting. At any adjourned meeting of shareholders, the board of directors shall fix a record date for shareholders entitled to vote at such adjourned meeting which must be a new date if the meeting is adjourned for more than one hundred twenty days. A plurality vote shall be sufficient to elect any director. SECTION 9. The secretary shall make, or cause the agent having charge of the stock transfer books of the corporation to make, at least five days before each election of directors, a complete list of the shareholders entitled by the articles of incorporation to vote at such election, arranged in alphabetical order, with the address and number of shares so entitled to vote held by each, which list shall be on file at the principal office of the corporation and subject to inspection by any shareholder within the usual business hours during said five days. Such list shall be produced and kept open at the time and place of election and subject to the inspection of any shareholder or shareholder's agent or attorney authorized in writing during the holding of such election. The original stock register or transfer book, or the duplicate thereof kept in the state of Indiana, shall be the only evidence as to who are the shareholders entitled to examine such list or the stock ledger or transfer book or to vote at any meeting of the shareholders. SECTION 10. A shareholder may vote either in person or by proxy executed in writing by the shareholder or a duly authorized agent or attorney in fact. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein. SECTION 11. The secretary, who may call on any officer or officers of the corporation for assistance, shall make all necessary and appropriate arrangements for the meetings of the shareholders, receive all proxies, and ascertain and report by certificate to each meeting of the shareholders the number of shares present in person or by proxy and entitled to vote at such meeting. In the absence of the secretary, an assistant secretary shall perform said duties. The certificate report of the secretary or an assistant secretary as to the regularity of such proxies and as to the number of shares present in person or by proxy and entitled to vote as such meeting shall be received as prima facie evidence of the number of shares, which are present in person and by proxy and entitled to vote, for the purpose of establishing the presence of a quorum at such meeting, for the purpose of organizing such meeting, and for all other purposes. SECTION 12. The chairman, when present, shall chair at the meetings of the shareholders. In the event of the absence or disability of the chairman, the president, if present, shall so chair. In the event no such officers are present, the meeting shall choose a presiding officer. SECTION 13. At each meeting of the shareholders, (i) the proxies shall be received and taken in charge by three inspectors, (ii) where voting is to be by ballot on any question, the polls shall be opened and closed and the ballots shall be taken in charge by such inspectors, and (iii) all questions touching the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by such three inspectors or a majority thereof. Such inspectors may be appointed by the board of directors before such meeting, or, if no such appointment shall have been made, then by the presiding officer at such meeting. In the event for any reason any of the inspectors previously appointed shall fail to attend such meeting, or being present will not or cannot act in such capacity, then an inspector or inspectors in place of such inspector or inspectors failing to attend or not acting shall be appointed by the presiding officer. SECTION 14. The order of business at each annual meeting of the shareholders, and, as far as applicable, at each special meeting of the shareholders, shall be as follows: (1) call to order by the presiding officer, (2) presentation of proofs of due call and notice of the meeting; provided, however, that the certificate of the secretary or assistant secretary that such notices were mailed, or the affidavit of such other person or persons who mailed the notices of such meeting, shall be conclusive evidence of such mailing, (3) submission of an alphabetical list of shareholders entitled to vote, (4) certificate and report of the secretary or assistant secretary as to the number of shares present in person or by proxy and entitled to vote, (5) ruling by presiding officer as to the presence of a quorum and the due organization of the meeting for the transaction of business, (6) announcement by the presiding officer of the persons to act as inspectors at such meeting, (7) reading or presentation of the minutes of previous meeting of shareholders, (8) presentation of annual report to shareholders, (9) election of directors and announcement in respect of annual meeting of directors, (10) unfinished business, (11) new business, and (12) adjournment. SECTION 15. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of meetings of the shareholders, including, without limitation, the establishment of procedures for the maintenance of order, safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting of the shareholders after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. SECTION 16. The annual meeting of shareholders shall be held at such time as is provided in Section 2 of this Article for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these by-laws. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II; provided, however, that nothing in this Article II shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, and if he should so determine, he shall so declare to the annual meeting, and any such business not properly brought before the annual meeting shall not be transacted. SECTION 17. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors. Nominations of persons for election to the board of the corporation at the annual meeting may be made at the annual meeting of shareholders by or at the direction of the board of directors, by any nominating committee or person appointed by the board, or by any shareholder of the corporation, entitled to vote for the election of directors at the annual meeting, who complies with the notice procedures set forth in this Article II. The chairman of the meeting shall, if the facts warrant, determine and declare to the annual meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the annual meeting, and the defective nomination shall be disregarded. SECTION 18. An annual meeting of shareholders may be adjourned or postponed to a different time or place, and notice of the new date, time or place need not be given if such adjournment or postponement is announced at the annual meeting before adjournment. ARTICLE III. BOARD OF DIRECTORS. SECTION 1. All corporate powers shall be exercised by or under the authority of, and the business and affairs of this corporation managed under the direction of a board of not less than two (2) nor more than nine (9) directors. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, age and service limitations as may be set forth in these by-laws, disqualification or removal from office. Any vacancy on the board of directors that results from other than an increase in the number of directors may be filled by a majority of the board of directors then in office even if less than a quorum, or by a sole remaining director. The term of any director elected by the board of directors to fill a vacancy not resulting from an increase in the number of directors shall expire at the next shareholders' meeting at which directors are elected, and the remainder of such term, if any, shall be filled by a director elected at such meeting. No person shall be eligible for election, reelection, or appointment as a member of the board of directors if such person shall have attained the age of seventy (70) years in the calendar year preceding the date of such election, reelection or appointment. Subject to the provisions of the preceding paragraphs, any and all of the directors may only be removed for cause. The directors shall receive such reasonable compensation as shall from time to time be provided for by resolution of the board of directors or a committee thereof. SECTION 2. In addition to the powers and authority by these by-laws expressly conferred upon it, the board of directors may do all such lawful acts and things as are not by the laws of the state of Indiana, by the articles of incorporation of the corporation, or by these by-laws directed or required to be exercised or done by the shareholders of the corporation. SECTION 3. A meeting of the newly elected directors, to be known as the annual meeting of the board of directors, shall be held at the principal office of the corporation as soon as conveniently possible after the annual meeting of the shareholders, or at such other place, within or without the state of Indiana, and at such other time as shall be fixed by the shareholders at their annual meeting, or as shall be fixed by the consent in writing of all of such newly elected directors, for the election of officers and for the transaction of such other business as may properly come before the meeting. No notice of such annual meeting shall be necessary or required in order legally to constitute the meeting if a majority of the newly elected directors shall be present. If a majority shall not be present at such meeting, those present shall adjourn the meeting to a specified time and place, and the secretary or an assistant secretary shall at once notify each of the newly elected directors of the time and place of holding such adjourned annual meeting. SECTION 4. Regular meetings of the board of directors or any committee thereof may be held at stated times, or from time to time, and at such place, either within or without the state of Indiana, as the board of directors or any committee may determine, without call and without notice. Any or all members of the board of directors or a committee thereof, may participate in any meeting of the board or committee by any means of a communication by which all persons participating in the meeting can simultaneously communicate with each other, and participation in this manner constitutes presence in person at the meeting. SECTION 5. Special meetings of the board of directors may be called at any time, or from time to time, by the chairman, the president or a vice president by causing the secretary or an assistant secretary to give to each director, either personally or by telephone, mail or telegraph. Special meetings of the board of directors shall be called by the chairman, the president or a vice president in like manner and on like notice at the written request of at least two directors. Special meetings of the board of directors may be held at the principal office of the corporation or at such other place, within or without the state of Indiana, as shall be specified in the notice of the meeting, or, if held upon waiver of notice, as shall be specified in such waiver. SECTION 6. Any meeting of the board of directors or any committee thereof, wheresoever held, at which all of the members are present, shall be as valid as if held pursuant to proper notice, and in case a meeting shall be held without notice when all are not present but the absent directors shall have signed a waiver of notice of such meeting, whether before or after the time stated in said waiver, or shall thereafter sign the minutes of the meeting, the same shall be as valid and binding as though called upon due notice. SECTION 7. The board of directors may take any action pursuant to these by-laws without a meeting if the action is taken by all members of the board. The action shall be evidenced by one or more written consents describing the action taken, signed by each director and included in the minutes or filed with the corporate records reflecting the action taken. Action taken without a meeting shall be effective when the last director signs the consent, unless the consent specifies a different prior or subsequent effective date. SECTION 8. At all meetings of the board of directors, a majority of the members of the board of directors shall be necessary to constitute a quorum for the transaction of any business except the filling of vacancies, but a less number may adjourn the meeting from time to time until a quorum is present. The act of a majority of the board of directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law or by the articles of incorporation or by the by- laws. SECTION 9. The board of directors may, by resolution adopted by a majority of the members of the board of directors, designate two or more of their number to constitute an executive committee, which committee, to the extent provided in said resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation. ARTICLE IV. OFFICERS. SECTION 1. The officers of the corporation shall be a chairman, a president, one or more vice presidents, a general manager, a secretary, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and a comptroller. If deemed advisable by the board of directors, any two or more offices may be held by the same person, except that the duties of the chairman or the president shall not be performed by the same person who performs the duties of secretary. SECTION 2. The officers of the corporation hereinabove provided for shall be elected by the board of directors at its annual meeting and shall hold office for one year and/or until their respective successors shall have been duly elected and shall have qualified. SECTION 3. The board of directors may, from time to time, elect or appoint an auditor and such other officers and agents as it shall deem necessary, who shall hold their respective offices for such terms and shall exercise such powers and perform such duties as may be prescribed from time to time by the by-laws, or as in absence of provision in the by-laws in respect thereto may be prescribed from time to time by the board of directors. SECTION 4. Any vacancy among the officers or agents of the corporation, duly elected or appointed by the board of directors shall be filled for the unexpired term by the board of directors. Any officer or agent elected or appointed by the board of directors, may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. SECTION 5. In the case of the absence, disability, death, resignation or removal from office of any officer of the corporation, or for any other reason that the board of directors shall deem sufficient, the board of directors may delegate, for the time being, the powers and/or duties, or any of them, of such officer to any other officer or to any director. SECTION 6. The chairman shall be the chief executive officer of the corporation and shall have general authority over all the affairs of the corporation and over all other officers, agents and employees of the corporation. The chairman shall, when present, preside at all meetings of the shareholders and, in the absence of the chairman, the president shall preside at all meetings of the board of directors. When the board of directors is not in session, the chairman shall have authority to suspend the authority of any other officer or officers of the corporation; subject, however, to the pleasure of the board of directors at its next meeting. In the case of the absence, disability, death, resignation or removal from office of the chairman, the powers and duties of the chairman shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors. SECTION 7. The president shall, subject to the control of the board of directors and the chairman, have such powers and perform such duties as usually devolve upon the president of a corporation and such other duties as may be prescribed for the president by the board of directors or the chairman. The president shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the president, the powers and duties of the president shall, for the time being, devolve upon and be exercised by a vice president, unless otherwise ordered by the board of directors or the chairman. SECTION 8. The general manager shall, subject to the control of the board of directors, the chairman and the president have general supervision over the management and direction of the affairs of the corporation, and supervision of all departments and of all officers of the corporation. The general manager shall, subject to the other provisions of these by-laws, have such other powers and perform such other duties as usually devolve upon the general manager of a corporation, and such further duties as may be prescribed for the general manager by the board of directors, the chairman or the president. The general manager shall report to the chairman. In case of the absence, disability, death, resignation or removal from office of the general manager, the powers and duties of the general manager shall, for the time being, devolve upon and be exercised by the president, unless otherwise ordered by the board of directors or the chairman. SECTION 9. The secretary shall have the custody and care of the records, minutes and stock books of the corporation and shall be responsible for authentication of such records. The secretary shall attend the meetings of the board of directors and of the shareholders and duly record, prepare and keep the minutes of their proceedings in a book or books to be kept for that purpose. The secretary shall give or cause to be given notice of all meetings of the shareholders and the board of directors when such notice shall be required. The secretary shall file and take charge of all papers and documents belonging to the corporation and shall have such other powers and duties as are incident to the office of secretary of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, the powers and duties of the secretary shall, for the time being, devolve upon and be exercised by an assistant secretary, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 10. Each of the assistant secretaries shall assist in the secretarial duties and shall have such other powers and duties as may be prescribed for such assistant secretary by the board of directors, or be delegated to such assistant secretary by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the secretary, those powers and duties shall, for the time being, devolve upon such one of the assistant secretaries as the board of directors, the chairman, the president, a vice president or the secretary may designate, or, if there be but one assistant secretary, then upon such assistant secretary; and such assistant secretary shall thereupon, during such period, exercise and perform all of the powers and duties of the secretary, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. SECTION 11. The treasurer shall have charge of, and be responsible for, the collection, receipt, custody and disbursement of the funds of the corporation, and shall have the custody also of all securities belonging to the corporation. The treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation. The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper receipts or making proper vouchers for such disbursements and shall preserve the same at all times during the treasurer's term of office. When necessary or proper, the treasurer shall endorse on behalf of the corporation all checks, notes or other obligations payable to the corporation or coming into the treasurer's possession for or on behalf of the corporation and shall deposit the funds arising therefrom together with all other funds and valuable effects of the corporation coming into the treasurer's possession in the name and to the credit of the corporation in such depositories as the board of directors from time to time, by resolution, shall direct. The treasurer shall have such other powers and duties as are incident to the office of treasurer of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. The treasurer shall render to the chairman, president, a vice president and the board of directors, at the regular meetings of the board of directors, or whenever the same shall be required, an account of all the treasurer's transactions as treasurer and of the financial condition of the corporation. The treasurer shall give the corporation a bond, if required by the board of directors, in such an amount and with such surety or sureties as may be ordered by the board, for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the treasurer's possession or under the treasurer's control belonging to the corporation. In case of the absence, disability, death, resignation or removal from office of the treasurer, the powers and duties of the treasurer shall, for the time being, devolve upon and be exercised by an assistant treasurer, unless otherwise ordered by the board of directors, the chairman, the president or a vice president. SECTION 12. Each of the assistant treasurers shall assist in the duties of the treasurer, and shall have such other powers and duties as may be prescribed for the assistant treasurer by the board of directors or be delegated to the assistant treasurer by the chairman, the president or a vice president. In case of the absence, disability, death, resignation or removal from office of the treasurer, those powers and duties shall, for the time being, devolve upon such one of the assistant treasurers as the board of directors, the chairman, the president, a vice president or the treasurer may designate, or, if there be but one assistant treasurer, then upon such assistant treasurer; and such assistant treasurer shall thereupon, during such period, exercise and perform all of the powers and duties of the treasurer, except as may be otherwise provided by the board of directors, the chairman, the president or a vice president. Each or any assistant treasurer shall likewise give the corporation a bond, if required by the board of directors, in such amount and with such surety or sureties as may be ordered by the board of directors. SECTION 13. The comptroller shall have control over all accounts and records of the corporation pertaining to moneys, properties, materials and supplies. The comptroller shall have executive direction of the bookkeeping and accounting departments and shall have general supervision over the records in all other departments pertaining to moneys, properties, materials and supplies. The comptroller shall have such other powers and duties as are incident to the office of comptroller of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the comptroller, the powers and duties of the comptroller shall be delegated by the board of directors, the chairman, the president or a vice president. SECTION 14. The auditor (if an auditor be elected or appointed by the board of directors) shall have charge of the investigation of all accounts and records of the corporation pertaining to moneys, properties and supplies, for the purpose of establishing their correctness. The auditor shall examine the accounts of all officers and employees from time to time, as often as practicable and shall see that proper returns are made of all receipts from all sources and that correct vouchers are provided for disbursements for any purpose. The auditor shall have such other powers and duties as are commonly incident to the office of auditor of a corporation, subject at all times to the direction and control of the board of directors, the chairman, the president and a vice president. In case of the absence, disability, death, resignation or removal from office of the auditor, the powers and duties of the auditor shall be delegated by the board of directors, the chairman, the president or a vice president. ARTICLE V. CERTIFICATES FOR SHARES. SECTION 1. Each certificate for shares of stock of the corporation shall be in such form, consistent with law, as shall be approved by the board of directors, shall be numbered consecutively as issued, shall state the name of the registered holder, the number of shares represented thereby, and such other matters and things as are required by law or by the articles of incorporation to be stated in such certificate. Each such certificate shall be signed by the chairman, the president or a vice president and the secretary or an assistant secretary of the corporation. In any case where such a certificate is also signed by a transfer agent and a registrar or either of them, the respective signatures of the chairman, president or a vice president and of the secretary or an assistant secretary thereon may be facsimiles, engraved or printed. SECTION 2. Shares of stock of the corporation shall be entered in the books of the corporation as they are issued, and shall be transferable on the books of the corporation by the holder thereof in person, or by his, her or its attorney duly authorized thereto in writing, upon the surrender of the outstanding certificate therefor properly endorsed. SECTION 3. The corporation and its officers shall be entitled to treat the holder of record of any share or shares of stock of the corporation as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person or persons, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Indiana, or except as in the articles of incorporation or in these by-laws provided to the contrary. SECTION 4. Shares of the capital stock of the corporation may be issued and disposed of by the corporation from time to time for such consideration as may be fixed from time to time by resolution of the board of directors. SECTION 5. The purchase price of all stock subscribed or purchased shall be paid as from time to time determined by resolution of the board of directors, either wholly or partly in money, labor or property. Said payments shall be made within such time and in such installments or upon such terms as the board of directors may from time to time determine and direct. ARTICLE VI. CORPORATE BOOKS. SECTION 1. Except as hereinafter or by the articles of incorporation or by law otherwise provided, the books and records of the corporation may be kept at such place or places, within or without the state of Indiana, as the board of directors may from time to time by resolution determine. SECTION 2. The original or duplicate stock register or transfer book, or, in case a stock registrar or transfer agent shall be employed by the corporation either within or without the state of Indiana, a complete and accurate shareholders' list, alphabetically arranged, giving the names and addresses of all shareholders, the number and classes of shares held by each and the time each became the record owner of his shares, shall be kept at the principal office of the corporation in the state of Indiana. SECTION 3. The stock transfer books of the corporation may from time to time be closed by order of the board of directors for any lawful purpose, and for such periods consistent with law, but not exceeding seventy days at any one time, as the board of directors may deem advisable. In lieu of closing the stock transfer books as aforesaid, the board of directors may, in its discretion, fix in advance a date not exceeding seventy days (or such lesser number of days as may in any case be the maximum number allowed under any applicable statute) next preceding the date of any meeting of shareholders or the date for the payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect, as the record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive any such dividend or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock; and, in such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive such payment of dividend or to receive such allotment of rights or to exercise such rights as the case may be, notwithstanding any transfer of stock on the books of the corporation after such record date fixed as aforesaid. SECTION 4. All books and records of the corporation shall be kept and maintained in such manner and for such periods as required by statute. ARTICLE VII. CHECKS, DRAFTS AND WRITTEN INSTRUMENTS - STOCK OWNED IN OTHER CORPORATIONS. SECTION 1. Except as provided in the immediately succeeding sentence of this Section 1, all checks, drafts, notes, demands or orders for the payment of money of the corporation shall be signed by one or more of such officers or other employees of this corporation and the signature of any such officer or other employee may be a facsimile signature, all as the board of directors shall at any time and from time to time by resolution or resolutions specify; provided, however, that in the cases of drafts not exceeding $3,000 for any one such draft, used by this corporation, the board of directors may empower the chairman, the president and a vice president, or any of them, to designate in writing the one or more officers or other employees authorized to sign such drafts. To the extent that the board of directors may by resolution or resolutions authorize from time to time, the signature of this corporation on checks of this corporation which are used solely for the purpose of transferring funds from the account of this corporation in any bank or trust company to the account of this corporation in any other bank or trust company may be only the printed name of this corporation. SECTION 2. Except as otherwise provided by these by-laws, (i) all deeds and mortgages made by this corporation shall be executed in its name by the president or a vice president and shall be attested by the secretary or an assistant secretary, and (ii) all other written agreements to which this corporation shall be a party shall be executed in its name by the chairman, the president or a vice president, and may be (but need not be) attested by the secretary or an assistant secretary. Notwithstanding the immediately preceding sentence of this Section 2, written agreements of this corporation (other than deeds and mortgages made by this corporation), which pertain to the routine operations of this corporation and are regularly being made in the ordinary course of carrying on such operations, may be executed for and on behalf of this corporation by any officer or officers of this corporation, or by any other agent or agents of this corporation, to the extent that such person or persons may, from time to time, be so authorized to act by either resolution of the board of directors or by written authorization of an officer of this corporation who has been authorized by resolution of the board of directors to execute such written authorization. SECTION 3. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any corporation and owned by this corporation (including reacquired shares of stock of this corporation) may, for sale or transfer, be endorsed in the name of this corporation by the chairman, the president or a vice president of this corporation, and said endorsement shall be duly attested by the secretary or an assistant secretary of this corporation. SECTION 4. Subject always to the further orders and directions of the board of directors, any share or shares of stock issued by any other corporation and owned or controlled by this corporation may be voted at any shareholders' meeting of such other corporation by the chairman of this corporation, if he be present, or in his absence by the president of this corporation if he be present, or in the absence of both such chairman and such president by any vice president of this corporation who may be present. Whenever, in the judgment of the chairman, the president or a vice president of this corporation, it is desirable for this corporation to execute a proxy or give a shareholder's consent in respect of any share or shares of stock issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the chairman, the president or a vice president of this corporation, and shall be attested by the secretary or an assistant secretary of this corporation. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the share or shares of stock issued by such other corporation and owned by this corporation the same as such share or shares might be voted by this corporation. ARTICLE VIII. DIVIDENDS. SECTION 1. Dividends upon the capital stock of the corporation, when earned, may be declared by the board of directors at any annual, regular or special meeting. Such dividends may be paid in cash, in property or in shares of the capital stock of the corporation, in the case of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the board of directors. SECTION 2. Before payment of any dividend or before making any distribution of profits, there may be set aside out of the surplus or net profits of the corporation such sum or sums as the board of directors form time to time, in their absolute discretion, may deem proper, as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for working capital, or for such other purpose as the board of directors shall think conducive to the interests of the corporation. ARTICLE IX. FISCAL YEAR. SECTION 1. The fiscal year of the corporation shall cover a twelve-month period commencing on the first day of such month as the board of directors shall, by resolution, provide. ARTICLE X. AMENDMENTS. SECTION 1. These by-laws may be altered, amended or repealed, in whole or in part, and new by-laws may be adopted at any annual, regular or special meeting of the board of directors by the affirmative vote of a majority of the members of the board of directors. EX-99.C.51 51 LAWRENCEBURG GAS COMPANY TO THE FIRST NATIONAL BANK OF CINCINNATI, AS TRUSTEE SEVENTH SUPPLEMENTAL INDENTURE Dated as of October 1, 1986 Supplemental to Indenture of Mortgage and Deed of Trust from Lawrenceburg Gas Company to The First National Bank of Cincinnati, as Trustee, dated March 1, 1955 First Mortgage Bonds, 9-3/4% Series Due 2001 This is, among other things, a mortgage of chattels. SEVENTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1986, between LAWRENCEBURG GAS COMPANY, a corporation organized and existing under the laws of the State of Indiana (the Company), having its principal office at No. 230 West High Street, Lawrenceburg, Indiana, and THE FIRST NATIONAL BANK OF CINCINNATI, a national banking association organized and existing under the laws of the United States of America, and authorized to accept and execute trusts, having its principal office at Fifth and Walnut Streets, Cincinnati, Ohio, as Trustee (the Trustee). WHEREAS, the Company has heretofore executed and delivered to the Trustee its Indenture of Mortgage and Deed of Trust, dated March 1, 1955 (the Indenture) to secure the payment of the principal of and the interest on bonds of all series at any time issued and outstanding thereunder, to declare the terms upon which bonds are to be issued thereunder (the Bonds) and to provide that the Company and the Trustee may from time to time enter into indentures supplemental to the Indenture for the purpose of creating new series of Bonds; WHEREAS, the Company and the Trustee have amended and supplemented the Indenture by means of six supplemental indentures (the indenture as amended) under the Fourth and Fifth of which there are Bonds now outstanding; WHEREAS, the Company has duly determined to create a new series of Bonds to be known as "First Mortgage Bonds, 9-3/4% Series Due 2001", which shall be limited to an aggregate principal amount outstanding of $1,200,000, and to add to the agreements contained in the Indenture as amended the agreements hereinafter set forth; and WHEREAS, the Company, pursuant to resolutions duly adopted by its Board of Directors at a duly called and held meeting, has approved the form and provisions of this Seventh Supplemental Indenture and authorized its execution, for the purpose of creating under the Indenture as amended and this Seventh Supplemental Indenture a new series of First Mortgage Bonds, 9- 3/4% Series Due 2001 (2001 Series Bonds), which are to be substantially in the following form, with appropriate omissions, insertions and variations as in the Indenture as amended and in this Seventh Supplemental Indenture provided or permitted: [Form of 2001 Series Bonds] Number ________________ $ _______________ LAWRENCEBURG GAS COMPANY First Mortgage Bond, 9-3/4% Series Due 2001 Due October 1, 2001 For value received, LAWRENCEURG GAS COMPANY, a corporation organized and existing under the laws of the State of Indiana (the Company, which term shall include any successor corporation as defined in the Indenture hereinafter referred to), hereby promises to pay to __________ or registered assigns, on October 1, 2001, the sum of __________ Dollars ($________) in coin or currency of the United States of America, which at the time of payment is legal tender for the payment of public and private debts, and to pay to the registered holder hereof interest thereon from the date hereof, at the rate of nine and three-quarters percent (9-3/4%) per annum, in like coin or currency, payable semi-annually on the first day of April and the first day of October in each year until the principal hereof shall have become due and payable, and thereafter if default be made in the payment of such principal, at the rate of nine and three-quarters percent (9-3/4%) per annum until the principal hereof shall be paid. Payments of both principal and interest are to be made at the principal office of the Trustee in the City of Cincinnati, Ohio. This Bond is one of an authorized issue of Bonds of the Company, known as its First Mortgage Bonds, not limited in aggregate principal amount, except as provided in the Indenture hereinafter mentioned, all issued and to be issued in one or more series under and equally and ratably secured (except as any sinking, amortization, improvement, renewal or other analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the Bonds of any particular series) by an indenture of mortgage and deed of trust (herein, together with all supplemental indentures thereto, called the Indenture), executed by the Company to The First National Bank of Cincinnati (the Trustee) as Trustee, dated March 1, 1955, to which Indenture reference is hereby made for a description of the property mortgaged and pledged, the nature and extent of the security, the terms and conditions upon which the Bonds are and are to be issued and secured and the rights of the holders thereof and of the Trustee in respect of such security. As provided in the Indenture, such Bonds may be issued in series, for various principal sums, may bear different dates and mature at different times, may bear interest at different rates and may otherwise vary as in the Indenture provided or permitted. This Bond is one of the Bonds described in the Indenture and designated therein as "First Mortgage Bonds, 9-3/4% Series Due 2001" (the 2001 Series Bonds). As provided in the Indenture, the 2001 Series Bonds are subject to redemption prior to maturity at the option of the Company in a multiple of One Thousand Dollars at any time on or after October 1, 1991, in whole or in part, together with interest accrued to the date fixed for redemption, plus a premium equal to the applicable percentage of such amount determined as follows: If redeemed in the Percentage twelve-month period of Principal ending September 30 Amount 1992 9.00% 1993 8.00% 1994 7.00% 1995 6.00% 1996 5.00% 1997 4.00% 1998 3.00% 1999 2.00% 2000 1.00% 2001 None As provided in the Indenture, if any of the Bonds are to be redeemed notice of redemption shall be mailed by registered mail, postage prepaid, not less than thirty days nor more than sixty days prior to the redemption date, to each registered holder of any Bond to be so redeemed to the last address of such holder appearing on the registry books for the Bonds. If provision is made for the redemption and payment of any Bond such Bond (or such portion thereof) shall cease to bear interest from and after the date fixed for redemption. To the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the Bonds may be changed and modified with the consent of the Company and upon the written consent of the holders of at least sixty-six and two-thirds per cent in principal amount of each series of the Bonds at the time outstanding and entitled to consent, provided that no such change shall be made (a) which would without the consent of the holders of all Bonds then outstanding and affected thereby (i) reduce the principal of, or premium on, or the rate of interest payable on, the Bonds, (ii) postpone the maturity date fixed in the Indenture or in the Bonds, or any installment of interest on, the Bonds, (iii) permit the creation of any lien prior to or on a parity with the lien of the Indenture (except as therein expressly permitted) or deprive the holder hereof of the lien created by the Indenture on such properties, or (iv) reduce the percentage of the principal amount of Bonds the consent of the holders of which is required for the authorization of any such change or modification, or (b) which would modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee. In case an event of default as defined in the Indenture shall occur and be continuing, the principal of all the Bonds outstanding may be declared and may become due and payable in the manner and with the effect provided in the Indenture. No recourse under or upon any obligation, covenant or agreement contained in the Indenture, or in any Bond thereby secured, or because of any indebtedness thereby secured, shall be had against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or of any successor corporation under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise; it being expressly agreed and understood that the Indenture, and the obligations thereby secured, are solely corporate obligations, and that no personal liability whatever shall attach to, or be incurred by, such incorporators, stockholders, officers or directors, as such, of the Company or of any successor corporation, or any of them, because of the incurring of the indebtedness thereby authorized, or under or by reason of any of the obligations, covenants or agreements contained in the Indenture or in any of the Bonds thereby secured, or implied therefrom. This Bond is a registered Bond and is transferable by the registered holder hereof, in person or by the attorney of such holder, duly authorized in writing, on the registry books to be kept for such purpose at the principal office of the Trustee, Registrar for the Bonds. Upon surrender of this Bond accompanied by a written instrument of transfer in form approved by the Company, duly executed by the registered holder in person or by such attorney, and upon cancellation hereof, one or more new registered Bonds, of authorized denominations, for the same aggregate principal amount, will be issued to the transferee in exchange herefor, as provided in the Indenture. This Bond shall not be valid or become obligatory for any purpose until the certificate endorsed hereon shall be signed by the Trustee under the Indenture. IN WITNESS WHEREOF, Lawrenceburg Gas Company has caused these presents to be signed in its name by its President or a Vice-President and its corporate seal to be affixed hereto and attested by its Secretary or an Assistant Secretary. LAWRENCEBURG GAS COMPANY President Attest: Secretary Trustee's Certificate of Authentication This Bond is one of the Bonds, of the series designated therein, described in the within-mentioned Indenture. THE FIRST NATIONAL BANK OF CINCINNATI Trustee By Authorized Officer WHEREAS, all things necessary to make the 2001 Series Bonds, when duly authenticated and issued, valid, binding and legal obligations of the Company, and to make this Seventh Supplemental Indenture a valid, binding and legal agreement supplemental to the Indenture, have been done; and NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH: that in order to declare the terms and conditions upon which the Bonds are to be issued, the Company, in consideration of the premises and of the purchase and acceptance of the Bonds by the holders thereof, has executed and delivered these presents. ARTICLE I 2001 Series Bonds 1. There shall be a new series of Bonds, known as "First Mortgage Bonds, 9-3/4% Series Due 2001" (the 2001 Series Bonds). The aggregate principal amount of 2001 Series Bonds which may be authenticated and delivered and outstanding shall be limited to $1,200,000, except as provided in Section 2.06 of the Indenture. The 2001 Series Bonds shall bear interest at the rate of nine and three quarters percent per annum and shall mature October 1, 2001. The date of commencement of the first interest period for the 2001 Series Bonds shall be October 1, 1986. All 2001 Series Bonds shall bear interest from their respective dates, such interest to be payable on the first day of April and October in each year. Both the principal of and the interest on the 2001 Series Bonds shall be payable at the principal office of the Trustee, in the City of Cincinnati, Ohio, in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts. The 2001 Series Bonds shall be subject to redemption at the option of the Company in the manner provided in the applicable provisions of Article IX of the Indenture, as heretofore and hereby amended. 2. 2001 Series Bonds may forthwith upon the execution and delivery of this Seventh Supplemental Indenture, or from time to time thereafter, be executed by the Company and delivered to Trustee, and shall thereupon be authenticated and delivered by the Trustee upon the Written Order of the Company. ARTICLE II. Amendments to Indenture as Amended The Indenture as amended is hereby amended in the following respects, the section numbers specified below being the sections of the Indenture as amended in which such amendments are made: 4.01. The first paragraph of 4.01 is hereby amended by substituting for the words "sixty per cent. (60%)", the words "sixty six and two-thirds per cent. (66 2/3%" in respect of the 2001 Series Bonds or any later series of Bonds. 7.05. 7.05 is hereby amended by changing the heading to read as follows: "7.05. Payment of Taxes; Restrictions on Other Liens" in respect of the 2001 Series Bonds or any later series of Bonds. 7.05. The covenant concerning restrictions on leases contained in the provisions of the second paragraph of 7.05. shall not apply in respect of the 2001 Series Bonds or any later series of Bonds. 7.13. In both paragraphs of 7.13. of ARTICLE II of the Fifth Supplemental Indenture delete the words "or any later series of Bonds" 7.14. In 7.14. of ARTICLE II of the Fifth Supplemental Indenture delete the words "or any later series of Bonds." 7.15. In 7.15. of Article II of the Fifth Supplemental Indenture delete the words "or any later series of Bonds." And add the following language at the end of such 7.15: "The Company will not sell, transfer or otherwise dispose of all or substantially all of its properties and assets without the consent in writing of the holders of 66 2/3% in principal amount of any then outstanding Bonds, and in no event unless A. Any such conveyance or transfer shall be in all respects subject to the lien of the Indenture, and any such conveyance or transfer shall be upon such terms as fully to preserve the lien and security of the Indenture and all the rights and powers of the Trustee and the holders of the Bonds. B. Upon and simultaneously with any such conveyance or transfer, the successor corporation or transferee shall execute and deliver to the Trustee and indenture supplemental hereto in form satisfactory to the Trustee expressly assuming the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company and containing a grant, conveyance, transfer and mortgage in terms sufficient to subject to the lien of the Indenture all property and franchises (other than Excepted Property) then owned or which many thereafter be acquired by such successor corporation or transferee and thereupon such successor corporation or transferee shall succeed to and be substituted for the Company hereunder with the same effect as if it had been named herein as party of the first part. 8.02. The covenant to provide a Renewal and Replacement Fund in the provisions of 8.02. shall not apply in respect of the 2001 Series Bonds or any later series of Bonds; provided, however, nothing herein contained shall limit the right of the Company to 2001 Series Bonds to satisfy its obligation under 8.02. in respect of any other series of Bonds. 9.19. The following section is added: 9.19. Redemption Price of 2001 Series Bonds. The 2001 Series Bonds shall be redeemable at any time on or after October 1, 1991, in whole or in part, at the option of the Company, together with interest accrued to the date fixed for redemption, plus a premium equal to the applicable percentage of such amount determined as set forth in the tabulation in the form of 2001 Series Bonds included in the Seventh Supplemental Indenture dated as of October 1, 1986." 10.07. In the first sentence of the second paragraph of 10.07, after the phrase "in 9.17," add the words "the redemption price of the 2001 Series Bonds shall be the applicable price referred to in 9.19." 11.02. The first paragraph of 11.02. is hereby amended by substituting for the words "sixty per cent. (60%)", the words "sixty six and two-thirds percent. (66 2/3%)" in respect of the 2001 Series Bonds or any later series of Bonds. 15.01. 15.01 is hereby amended by adding in paragraphs A and C after the word "cash," the words, "money, direct or indirect obligations of the United States of America," in respect of the 2001 Series Bonds or any later series of Bonds. ARTICLE III. The Trustee The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Seventh Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company. ARTICLE IV. Miscellaneous Provisions Except insofar as herein otherwise expressly provided, all the provisions, terms and conditions of the Indenture as amended shall be deemed to be incorporated in, and made a part of, this Seventh Supplemental Indenture; and the Indenture, as supplemented and amended by such seven supplemental indentures, is in all respects ratified and confirmed and shall be read, taken and construed as one and the same instrument. This Seventh Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts, or as many of them as the Company and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument. IN WITNESS WHEREOF, LAWRENCEBURG GAS COMPANY has caused this Seventh Supplemental Indenture to be signed in its corporate name by its President or a Vice-President and its corporate seal to be hereunto affixed and attested by its Secretary or an Assistant Secretary and the Trustee, in evidence of its acceptance of the Trust hereby created, has caused this Seventh Supplemental Indenture to be signed in its corporate name by one of its Vice Presidents and its corporate seal to be hereunto affixed and attested by one of its Trust Officers, as of the day and year first written above. LAWRENCEBURG GAS COMPANY By _/s/ C. Robert Everman its Vice-President Attest: its Secretary THE FIRST NATIONAL BANK OF CINCINNATI By /s/ Dennis Meyrose Vice President & Trust Officer By /s/ Nancy V. Kelly TRUST OFFICER STATE OF OHIO ) COUNTY OF HAMILTON ) The foregoing instrument was acknowledged before me this 28th day of October, 1986 by C. Robert Everman, Vice-President, Finance and Treasurer of Lawrenceburg Gas Company, an Indiana Corporation, on behalf of the corporation. /s/ Margaret L. Huber Notary Public STATE OF OHIO ) COUNTY OF HAMILTON ) The foregoing instrument was acknowledged before me this 29 day of October, 1986 by Dennis Meyrose, Vice President and Trust Officer, and Nancy V. Kelly, Trust Officer, of The First National Bank of Cincinnati, a national banking association organized and existing under the laws of the United States of America, on behalf of the corporation. /s/ Cheri S. Geraci Notary Public EX-99.D.1 52 CINERGY CORP. AND SUBSIDIARY COMPANIES AGREEMENT FOR FILING CONSOLIDATED INCOME TAX RETURNS AND FOR ALLOCATION OF CONSOLIDATED INCOME TAX LIABILITIES AND BENEFITS Cinergy Corp., a registered public utility holding company, and its Subsidiaries hereby agree to join annually in the filing of a consolidated Federal income tax return and to allocate the consolidated Federal income tax liabilities and benefits among the members of the consolidated group in accordance with the provisions of this Agreement. 1. DEFINITIONS "Consolidated tax" is the aggregate current Federal income tax liability for a tax year, being the tax shown on the consolidated Federal income tax return and any adjustments thereto, as described in section 5 hereof. "Corporate taxable income" is the positive taxable income of an associate company for a tax year, computed as though such company had filed a separate return on the same basis as used in the consolidated return, except that dividend income from associate companies shall be disregarded, and other intercompany transactions, eliminated in consolidation, shall be given appropriate effect. "Corporate taxable loss" is the taxable loss of an associate company for a tax year, computed as though such company had filed a separate return on the same basis as used in the consolidated return, except that dividend income from associate companies shall be disregarded, and other intercompany transactions, eliminated in consolidation, shall be given appropriate effect. "Corporate tax credit" is a negative separate regular tax of a subsidiary company for a tax year, equal to the amount by which the consolidated regular tax is reduced by including the corporate taxable loss of such subsidiary company in the consolidated tax return. "Separate return tax" is the tax on the corporate taxable income or loss of an associate company as though such company were not a member of a consolidated group. These definitions shall apply, as appropriate, in the context of the regular income tax and the Alternative Minimum Tax ("AMT") unless otherwise indicated in this Agreement. 2. TAX ALLOCATION PROCEDURES The consolidated tax shall be allocated among the members of the group consistent with Rule 45(c) of the Public Utility Holding Company Act of 1935, utilizing the separate "corporate taxable income" method, in the following manner: a) Each subsidiary which has a corporate taxable loss will be entitled to a corporate tax credit equal to the amount by which the consolidated regular income tax is reduced by including the corporate tax loss of such subsidiary in the consolidated tax return. The members having corporate taxable income will be allocated an amount of regular income tax liability equal to the sum of the consolidated regular tax liability and the corporate tax credits allocated to the subsidiaries having corporate tax losses based on the ratio that each such member's corporate taxable income bears to the total corporate taxable income of all members having corporate taxable income. If the aggregate of the members' corporate tax losses are not entirely utilized on the current year's consolidated return, the consolidated carry back or carry forward of such losses to the applicable taxable year(s) will be allocated to each member having a corporate taxable loss in the ratio that such member's separate corporate tax loss bears to the total corporate tax losses of all members having corporate taxable losses. b) The consolidated Environmental Tax will be allocated among the members of the group by applying the procedures set forth in subsection a) above, except that the basis for allocation will be Alternative Minimum Taxable Income ("AMTI") rather than regular corporate taxable income. c) The consolidated AMT will be allocated among the members in accordance with the procedures and principles set forth in Proposed Treasury Regulation section 1.1502-55 in the form such Regulation existed on the date on which this Agreement was executed. d) Tax benefits such as general business credits, foreign tax benefits, or other tax credits shall be apportioned directly to those members whose investments or contributions generated the credit or benefit. If the credit or benefit can not be entirely utilized to offset current consolidated tax, the consolidated credit carryback or carryforward shall be apportioned to those members whose investments or contributions generated the credit or benefit in proportion to the relative amounts of credits or benefits generated by each member. e) If the amount of consolidated tax allocated to any subsidiary under this Agreement, as determined above, exceeds the separate return tax of such subsidiary, such excess shall be reallocated among those members whose allocated tax liability is less than the amount of their respective separate return tax liabilities. The reallocation shall be proportionate to the respective reductions in separate return tax liability of such members. Any remaining unallocated tax liability shall be assigned to Cinergy Corp.. The term "tax" and "tax liability" used in this subsection shall include regular tax, Environmental Tax and AMT. 3. TAX PAYMENTS AND COLLECTIONS FOR ALLOCATIONS Cinergy Corp. shall make any calculations on behalf of the members necessary to comply with the estimated tax provisions of the Internal Revenue Code of 1986 as amended (the "Code"). Based on such calculations Cinergy Corp. shall charge or refund to the members appropriate amounts at intervals consistent with the dates indicated by Code section 6655. Cinergy Corp. shall be responsible for paying to the Internal Revenue Service the consolidated current Federal income tax liability. After filing the consolidated Federal income tax return and allocating the consolidated tax liability among the members, Cinergy Corp. shall charge or credit, as appropriate, the members to reflect the difference between prior payments or credits and their current tax as allocated under this Agreement. 4. ALLOCATION OF STATE TAX LIABILITIES OR BENEFITS State and local income tax liabilities will be allocated, where appropriate, among members in accordance with principles similar to those employed in this Agreement for the allocation of consolidated Federal income tax liability. 5. TAX RETURN ADJUSTMENTS In the event any consolidated tax return is subsequently adjusted by the Internal Revenue Service, state tax authorities, amended returns, claims for refund, or otherwise, such adjustments shall be reflected in the same manner as though they had formed part of the original consolidated return. Interest paid or received, and penalties imposed on account of any adjustment will be allocated to the responsible member. 6. NEW MEMBERS If, at any time, any other company becomes a member of the Affiliated Group, the parties hereto agree that such new member may become a party to this Agreement by executing a duplicate copy of this Agreement. Unless otherwise specified, such new member shall have similar rights and obligations of all other members under this Agreement. 7. MEMBERS LEAVING THE AFFILIATED GROUP In the event that any member of the Affiliated Group at any time leaves the Group and, under any applicable statutory provision or regulation, that member is assigned and is deemed to take with it all or a portion of any of the tax attributes (including, but not limited to, net operating losses, credit carryforwards, and Minimum Tax Credit carryforwards) of the Affiliated Group, then, to the extent the amount of the attributes so assigned differs from the amount of such attributes previously allocated to such member under this Agreement, the leaving member shall appropriately settle with the Group. Such settlement shall consist of payment on a dollar-for-dollar basis for all differences in credits and, in the case of net operating loss differences, in an amount computed by reference to the highest marginal corporate tax rate. The settlement amounts shall be allocated among the remaining members of the Group in proportion to the relative level of attributes possessed by each member and the attributes of each member shall be adjusted accordingly. 8. SUCCESSORS, ASSIGNS The provisions and terms of this Agreement shall be binding on and inure to the benefit of any successor or assignee by reason of merger, acquisition of assets, or otherwise, of any of the members hereto. 9. AMENDMENT AND TERMINATION This Agreement may be amended at any time by the written agreement of the parties hereto at the date of such amendment and may be terminated at any time by the written consent of all such parties. 10. GOVERNING LAW This Agreement is made under the law of the State of Ohio, which law shall be controlling in all matters relating to the interpretation, construction, or enforcement hereof. 11. EFFECTIVE DATE This Agreement is effective for the allocation of the current Federal income tax liabilities of the members for the consolidated tax year 1994 and all subsequent years until this Agreement is revised in writing. 12. APPROVAL This Agreement is subject to the approval of the Securities and Exchange Commission. A copy of this Agreement will be filed as an exhibit to the Form U5S Annual Report to the Securities and Exchange Commission by Cinergy Corp. for the year ended December 31, 1995. The above procedure for apportioning the consolidated annual net current federal and state tax liabilities and tax benefits of Cinergy Corp. and its consolidated affiliates have been agreed to by each of the below listed members of the consolidated group as evidenced by the signature of an officer of each company. Cinergy Corp. By:/s/ J. Wayne Leonard_ ____________ Date:1-23-95_________ Cinergy Services, Inc. By:/s/ J. Wayne Leonard _____________ Date:1-23-95_________ The Cincinnati Gas & Electric Co. By:/s/ William L. Sheafer____________ Date:1-23-95_________ PSI Energy, Inc. By:/s/ J. Wayne Leonard______________ Date:1-23-95_________ PSI Energy Argentina, Inc. By:/s/ J. Wayne Leonard______________ Date:1-23-95_________ South Construction Company, Inc. By:/s/ J. Wayne Leonard______________ Date:1-23-95_________ The Union Light, Heat & Power Co. By:/s/ William L. Sheafer____________ Date:1-23-95_________ Miami Power Corp. By:/s/ William L. Sheafer____________ Date:1-23-95_________ Lawrenceburg Gas Co. By:/s/ William L. Sheafer____________ Date:1-23-95_________ The West Harrison Gas & Electric Co. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ Tri-State Improvement Co. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ KO Transmission Co. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ Cinergy Investments, Inc. By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______ PSI Recycling, Inc. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ Power Equipment Supply Company By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI Power Resource Operations, Inc. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI Power Resource Development, Inc. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI Sunnyside, Inc. By:/s/ Charles J. Winger ____________ Date:__1-23-95_______ PSI Environmental Corp. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI International, Inc. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI T&D International, Inc. By:/s/ J. Wayne Leonard _____________ Date:__1-23-95_______ PSI Yacyreta, Inc. By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______ Wholesale Power Services, Inc. By:/s/ Charles J. Winger_____________ Date:__1-23-95_______ PSI Argentina, Inc. By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______ CG&E Resource Marketing, Inc. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ CGE ECK, Inc. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ Costanera Power Corp. By:/s/ J. Wayne Leonard______________ Date:__1-23-95_______ Enertech Associates International Inc. By:/s/ William L. Sheafer____________ Date:__1-23-95_______ EX-99.H.1 53 Subsidiary Listing The following is a listing, as of March 27, 1996, of the subsidiaries of each registrant and their state of incorporation or organization indented to show degree of remoteness from registrant. State of Organization Name of Company_______________ or Incorporation___ Cinergy Corp. Delaware The Cincinnati Gas & Electric Company Ohio The Union Light, Heat and Power Company Kentucky Lawrenceburg Gas Company Indiana The West Harrison Gas and Electric Company Indiana Miami Power Corporation Indiana KO Transmission Company Kentucky Tri-State Improvement Company Ohio PSI Energy, Inc. Indiana South Construction Company, Inc Indiana PSI Energy Argentina, Inc.* Indiana Cinergy Services, Inc. Delaware Cinergy Investments, Inc. Delaware CGE ECK, Inc. Delaware Cinergy Resources, Inc. Delaware Cinergy Technology, Inc. Indiana PSI Argentina, Inc.* Indiana Costanera Power Corp.* Indiana PSI International, Inc. Indiana PSI Power Resource Development, Inc. Indiana PSI Power Resource Operations, Inc. Indiana PSI Recycling, Inc. Indiana PSI Sunnyside, Inc. Indiana PSI T&D International, Inc. Indiana PSI Yacyreta, Inc. Indiana Power Equipment Supply Co. Indiana Power International, Inc. Ohio Beheer-En Belegginsmaatschappij Bruwabel B.V. Netherlands Power Development s.r.o. Czech Republic Power International s.r.o. Czech Republic Wholesale Power Services, Inc. Indiana Cinergy Cooling Corp. Ohio *EWG or FUCO EX-99.F.1 54 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors of Cinergy Corp.: We have audited the consolidated balance sheets of CINERGY CORP. (a Delaware Corporation) and its subsidiary companies as of December 31, 1995, and the related consolidated statements of income, changes in common stock equity and cash flows for year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform our audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Cinergy Corp. and its subsidiary companies as of December 31, 1995, and the results of their operations and their cash flows for the year then ended, in conformity with generally accepted accounting principles. Arthur Andersen LLP Cincinnati, Ohio, January 25, 1996 EX-99.F.2 55
CINERGY CORP. CONSOLIDATING STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands, except per share amounts) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Cinergy Corp. Services, Inc. & Electric Company 2/Energy, Inc. 1/ OPERATING REVENUES Electric - - $1,437,223 3/ $1,248,035 3/ Gas - - 410,852 - Other - 190,167 - - - 190,167 1,848,075 1,248,035 OPERATING EXPENSES Fuel used in electric production - - 327,353 389,401 Gas purchased - - 206,250 - Purchased and exchanged power Non-affiliated companies - - 13,870 33,762 Affiliated companies - - 42,575 30,104 Other operation 781 184,646 291,874 228,508 Maintenance - - 94,688 87,492 Depreciation - 32 158,986 120,773 Post-in-service deferred operating expenses - net - - 3,290 (5,790) Amortization of phase-in deferrals - - 9,091 - Income taxes (488) - 136,386 85,043 Taxes other than income taxes 84 5,697 203,680 51,853 377 190,375 1,488,043 1,021,146 OPERATING INCOME (LOSS) (377) (208) 360,032 226,889 OTHER INCOME AND EXPENSES - NET Allowance for equity funds used during construction - - 1,790 174 Post-in-service carrying costs - - - 3,186 Phase-in deferred return - - 8,537 - Income taxes 537 - 4,587 941 Equity in earnings of subsidiaries 349,086 - - - Other - net (211) (1) 4,221 (3,188) 349,412 (1) 19,135 1,113 INCOME (LOSS) BEFORE INTEREST AND OTHER CHARGES 349,035 (209) 379,167 228,002 INTEREST AND OTHER CHARGES Interest on long-term debt - - 143,334 70,577 Other interest 1,853 4 3,486 15,821 Allowance for borrowed funds used during construction - - (3,854) (4,211) Preferred dividend requirements of subsidiaries - - - - 1,853 4 142,966 82,187 NET INCOME (LOSS) 347,182 (213) 236,201 145,815 PREFERRED DIVIDEND REQUIREMENT - - 17,673 13,180 INCOME APPLICABLE TO COMMON STOCK $347,182 ($213) $218,528 $132,635 AVERAGE COMMON SHARES OUTSTANDING EARNINGS PER COMMON SHARE DIVIDENDS DECLARED PER COMMON SHARE 1/ PSI Energy, Inc. is the parent company of PSI Energy Argentina, Inc. and South Construction Co., neither of which had any activity for 1995. 2/ See accompanying consolidating statements of income (loss). 3/ Includes $30,104 and $42,575 from affiliated companies for CG&E and PSI, respectively.
(CONTINUED) CINERGY CORP. CONSOLIDATING STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands, except per share amounts) Consolidated Cinergy Consolidated Investments, Inc. 2/ Eliminations Cinergy Corp. OPERATING REVENUES Electric $10,514 ($75,191) $2,620,581 Gas - - 410,852 Other - (190,167) - 10,514 (265,358) 3,031,433 OPERATING EXPENSES Fuel used in electric production - - 716,754 Gas purchased - - 206,250 Purchased and exchanged power Non-affiliated companies - - 47,632 Affiliated companies - (72,679) - Other operation 13,727 (184,949) 534,587 Maintenance - - 182,180 Depreciation - (32) 279,759 Post-in-service deferred operating expenses - net - - (2,500) Amortization of phase-in deferrals - - 9,091 Income taxes (1,479) - 219,462 Taxes other than income taxes 469 (5,697) 256,086 12,717 (263,357) 2,449,301 OPERATING INCOME (LOSS) (2,203) (2,001) 582,132 OTHER INCOME AND EXPENSES - NET Allowance for equity funds used during construction - - 1,964 Post-in-service carrying costs - - 3,186 Phase-in deferred return - - 8,537 Income taxes (674) - 5,391 Equity in earnings of subsidiaries - (349,086) - Other - net 4,262 (1,586) 3,497 3,588 (350,672) 22,575 INCOME (LOSS) BEFORE INTEREST AND OTHER CHARGES 1,385 (352,673) 604,707 INTEREST AND OTHER CHARGES Interest on long-term debt - - 213,911 Other interest 1,248 (1,586) 20,826 Allowance for borrowed funds used during construction - - (8,065) Preferred dividend requirements of subsidiaries - 30,853 30,853 1,248 29,267 257,525 NET INCOME (LOSS) 137 (381,940) 347,182 PREFERRED DIVIDEND REQUIREMENT - (30,853) - INCOME APPLICABLE TO COMMON STOCK $137 ($351,087) $347,182 AVERAGE COMMON SHARES OUTSTANDING 156,620 EARNINGS PER COMMON SHARE $2.22 DIVIDENDS DECLARED PER COMMON SHARE $1.72 1/ PSI Energy, Inc. is the parent company of PSI Energy Argentina, Inc. and South Construction Co., neither of which had any activity for 1995. 2/ See accompanying consolidating statements of income (loss). 3/ Includes $30,104 and $42,575 from affiliated companies for CG&E and PSI, respectively.
CINERGY CORP. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated Cinergy The Cincinnati Gas Cinergy Corp. Services, Inc. & Electric Company 1/ ASSETS UTILITY PLANT - ORIGINAL COST In service Electric - - $4,564,711 Gas - - 680,339 Common - 1,241 183,422 - 1,241 5,428,472 Accumulated depreciation - - 1,730,232 - 1,241 3,698,240 Construction work in progress - - 77,661 Total utility plant - 1,241 3,775,901 CURRENT ASSETS Cash and temporary cash investments 592 - 6,612 Restricted deposits - - 1,144 Accounts receivable - net 2 - 292,493 Accounts receivable from affiliated companies 26,953 14,116 21,409 Materials, supplies, and fuel - at average cost Fuel for use in electric production - - 40,395 Gas stored for current use - - 21,493 Other materials and supplies - - 55,388 Property taxes applicable to subsequent year - - 116,822 Prepayments and other - - 30,572 27,547 14,116 586,328 OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses - - 148,316 Phase-in deferred return and depreciation - - 100,388 Deferred demand-side management costs - - 19,158 Amounts due from customers - income taxes - - 397,155 Deferred merger costs - - 14,538 Unamortized costs of reacquiring debt - - 39,428 Other - - 41,025 Investment in subsidiaries 2,563,727 - - Other (10) 602 54,691 2,563,717 602 814,699 $2,591,264 $15,959 $5,176,928 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $.01 par value; authorized shares - 600,000,000; outstanding shares - 157,670,141 $1,577 - - Common stock of subsidiaries - - 762,136 Paid-in capital 1,597,050 - 339,101 Retained earnings (deficit) 950,216 (213) 427,226 Total common stock equity 2,548,843 (213) 1,528,463 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption - - 40,000 Subject to mandatory redemption - - 160,000 LONG-TERM DEBT - - 1,702,650 Total capitalization 2,548,843 (213) 3,431,113 CURRENT LIABILITIES Long-term debt due within one year - - 151,500 Notes payable - - - Accounts payable 100 7,635 133,999 Accounts payable to affiliated companies 42,381 8,318 - Litigation settlement - - - Accrued taxes 197 - 250,189 Accrued interest - - 31,299 Other - - 45,145 42,678 15,953 612,132 OTHER LIABILITIES Deferred income taxes (258) - 795,385 Unamortized investment tax credits - - 129,372 Accrued pension and other postretirement benefit costs - - 117,641 Other 1 219 91,285 (257) 219 1,133,683 $2,591,264 $15,959 $5,176,928 1/ See accompanying consolidating balance sheets.
(CONTINUED) CINERGY CORP. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated Consolidated Cinergy PSI Energy, Inc. 1/ Investments, Inc. 1/ Eliminations ASSETS UTILITY PLANT - ORIGINAL COST In service Electric $4,052,984 - - Gas - - - Common - - - 4,052,984 - - Accumulated depreciation 1,637,169 - - 2,415,815 - - Construction work in progress 58,191 - - Total utility plant 2,474,006 - - CURRENT ASSETS Cash and temporary cash investments 15,522 12,326 - Restricted deposits 1,187 5 - Accounts receivable - net 73,419 5,236 - Accounts receivable from affiliated companies 20,568 20,537 (103,583) Materials, supplies, and fuel - at average cost Fuel for use in electric production 82,014 - - Gas stored for current use - - - Other materials and supplies 29,462 226 - Property taxes applicable to subsequent year - - - Prepayments and other 1,234 541 - 223,406 38,871 (103,583) OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses 38,874 - - Phase-in deferred return and depreciation - - - Deferred demand-side management costs 110,242 - - Amounts due from customers - income taxes 26,338 - - Deferred merger costs 42,286 - - Unamortized costs of reacquiring debt 34,476 - - Other 33,886 - - Investment in subsidiaries - - (2,563,727) Other 92,056 (6,784) (4,434) 378,158 (6,784) (2,568,161) $3,075,570 $32,087 ($2,671,744) CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $.01 par value; authorized shares - 600,000,000; outstanding shares - 157,670,141 - - - Common stock of subsidiaries 539 - (762,675) Paid-in capital 403,253 24,418 (766,772) Retained earnings (deficit) 625,275 (12,971) (1,039,317) Total common stock equity 1,029,067 11,447 (2,568,764) CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption 187,897 - - Subject to mandatory redemption - - - LONG-TERM DEBT 828,116 - - Total capitalization 2,045,080 11,447 (2,568,764) CURRENT LIABILITIES Long-term debt due within one year 50,400 - - Notes payable 198,531 - (32,731) Accounts payable 116,817 3,754 1,098 Accounts payable to affiliated companies - 20,153 (70,852) Litigation settlement 80,000 - - Accrued taxes 65,851 948 - Accrued interest 24,696 - - Other 16,000 793 - 552,295 25,648 (102,485) OTHER LIABILITIES Deferred income taxes 331,876 (5,608) (495) Unamortized investment tax credits 56,354 - - Accrued pension and other postretirement benefit costs 54,130 - - Other 35,835 600 - 478,195 (5,008) (495) $3,075,570 $32,087 ($2,671,744) 1/ See accompanying consolidating balance sheets.
(CONTINUED) CINERGY CORP. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated Cinergy Corp. ASSETS UTILITY PLANT - ORIGINAL COST In service Electric $8,617,695 Gas 680,339 Common 184,663 9,482,697 Accumulated depreciation 3,367,401 6,115,296 Construction work in progress 135,852 Total utility plant 6,251,148 CURRENT ASSETS Cash and temporary cash investments 35,052 Restricted deposits 2,336 Accounts receivable - net 371,150 Accounts receivable from affiliated companies - Materials, supplies, and fuel - at average cost Fuel for use in electric production 122,409 Gas stored for current use 21,493 Other materials and supplies 85,076 Property taxes applicable to subsequent year 116,822 Prepayments and other 32,347 786,685 OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses 187,190 Phase-in deferred return and depreciation 100,388 Deferred demand-side management costs 129,400 Amounts due from customers - income taxes 423,493 Deferred merger costs 56,824 Unamortized costs of reacquiring debt 73,904 Other 74,911 Investment in subsidiaries - Other 136,121 1,182,231 $8,220,064 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $.01 par value; authorized shares - 600,000,000; outstanding shares - 157,670,141 $1,577 Common stock of subsidiaries - Paid-in capital 1,597,050 Retained earnings (deficit) 950,216 Total common stock equity 2,548,843 CUMULATIVE PREFERRED STOCK OF SUBSIDIARIES Not subject to mandatory redemption 227,897 Subject to mandatory redemption 160,000 LONG-TERM DEBT 2,530,766 Total capitalization 5,467,506 CURRENT LIABILITIES Long-term debt due within one year 201,900 Notes payable 165,800 Accounts payable 263,403 Accounts payable to affiliated companies - Litigation settlement 80,000 Accrued taxes 317,185 Accrued interest 55,995 Other 61,938 1,146,221 OTHER LIABILITIES Deferred income taxes 1,120,900 Unamortized investment tax credits 185,726 Accrued pension and other postretirement benefit costs 171,771 Other 127,940 1,606,337 $8,220,064 1/ See accompanying consolidating balance sheets.
CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Consolidated Cinergy The Cincinnati Gas PSI Cinergy Corp. Services, Inc. & Electric Company 1/ Energy, Inc. 2/ Operating Activities Net income (loss) $347,182 ($213) $236,201 $145,815 Items providing (using) cash currently: Depreciation - 32 158,986 120,773 Deferred income taxes and investment tax credits - net - - 26,938 5,201 Allowance for equity funds used during construction - - (1,790) (174) Regulatory assets - net - - 16,654 (15,628) Changes in current assets and current liabilities Restricted deposits - - (1,046) 16 Accounts receivable - net 28,190 (13,367) (44,882) (57,926) Materials, supplies, and fuel - - 14,039 31,748 Accounts payable 41,481 15,203 13,182 (25,958) Accrued taxes and interest (720) - 21,935 34,078 Other items - net (163,058) (1,655) 631 18,714 Net cash provided by (used in) operating activities 253,075 - 440,848 256,659 Financing Activities Issuance of common stock 60,139 - - - Issuance of long-term debt - - 344,280 - Funds on deposit from issuance of long-term debt - - - 9,987 Retirement of preferred stock of subsidiaries - - (93,450) (16) Redemption of long-term debt - - (338,378) (60,455) Change in short-term debt (75,000) - (14,500) 4,958 Dividends on preferred stock - - (17,673) (13,181) Dividends on common stock (268,851) - (219,550) - Capital contribution from parent company - - - 13,926 Net cash provided by (used in) financing activities (283,712) - (339,271) (44,781) Investing Activities Construction expenditures (less allowance for equity funds used during construction) - - (138,325) (186,580) Deferred demand-side management costs - net - - (9,156) (16,117) Equity investment in Argentine utility 19,799 - - - Net cash provided by (used in) investing activities 19,799 - (147,481) (202,697) Net increase (decrease) in cash and temporary cash investments (10,838) - (45,904) 9,181 Cash and temporary cash investments at beginning of period 11,430 - 52,516 6,341 Cash and temporary cash investments at end of period $592 - $6,612 $15,522 1/ See accompanying consolidating statements of cash flows. 2/ PSI Energy, Inc. is the parent company of PSI Argentina, Inc. and South Construction Co., neither of which had any activity for 1995.
(CONTINUED) CINERGY CORP. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Cinergy Consolidated Investments, Inc. 1/ Eliminations Cinergy Corp. Operating Activities Net income (loss) $137 ($381,940) $347,182 Items providing (using) cash currently: Depreciation - (32) 279,759 Deferred income taxes and investment tax credits - net (3,728) - 28,411 Allowance for equity funds used during construction - - (1,964) Regulatory assets - net - - 1,026 Changes in current assets and current liabilities Restricted deposits (5) - (1,035) Accounts receivable - net (23,850) 40,194 (71,641) Materials, supplies, and fuel 5,427 - 51,214 Accounts payable 14,664 (61,636) (3,064) Accrued taxes and interest 1,342 - 56,635 Other items - net (2,826) 165,066 16,872 Net cash provided by (used in) operating activities 947 (248,134) 703,395 Financing Activities Issuance of common stock - - 60,139 Issuance of long-term debt - - 344,280 Funds on deposit from issuance of long-term debt - - 9,987 Retirement of preferred stock of subsidiaries - - (93,466) Redemption of long-term debt - - (398,833) Change in short-term debt - 21,442 (63,100) Dividends on preferred stock - 30,854 - Dividends on common stock - 219,550 (268,851) Capital contribution from parent company - (13,926) - Net cash provided by (used in) financing activities - 257,920 (409,844) Investing Activities Construction expenditures (less allowance for equity funds used during construction) - - (324,905) Deferred demand-side management costs - net - - (25,273) Equity investment in Argentine utility 9,786 (9,786) 19,799 Net cash provided by (used in) investing activities 9,786 (9,786) (330,379) Net increase (decrease) in cash and temporary cash investments 10,733 - (36,828) Cash and temporary cash investments at beginning of period 1,593 - 71,880 Cash and temporary cash investments at end of period $12,326 - $35,052 1/ See accompanying consolidating statements of cash flows. 2/ PSI Energy, Inc. is the parent company of PSI Argentina, Inc. and South Construction Co., neither of which had any activity for 1995.
BALANCE AT DECEMBER 31, 1994 $2,414,271 - $1,532,972 $882,951 Common stock 2/ 25 - - Paid-in capital 61,392 1,227 18 Contribution from parent company - 13,926 Retained earnings (deficit) Net income (loss) 347,182 (213) 236,201 145,815 Dividends on preferred stock - - (17,673) (13,181) Dividends on common stock (268,851) - (219,550) - Other (5,176) - (4,714) (462) BALANCE AT DECEMBER 31, 1995 $2,548,843 ($213) $1,528,463 $1,029,067 1/ See accompanying consolidating statements of changes in common stock equity. 2/ Par values, authorized shares, and outstanding shares are as follows: Par Value Cinergy $0.01 CG&E $8.50 PSI $.01 stated value Authorized shares (in thousands) Cinergy 600,000 CG&E 120,000 PSI 60,000 Outstanding Shares (in thousands) Cinergy 157,670 CG&E 89,663 PSI 53,914
BALANCE AT DECEMBER 31, 1994 $11,310 ($2,427,233) $2,414,271 Common stock 2/ - 25 Paid-in capital - (1,245) 61,392 Contribution from parent company - (13,926) - Retained earnings (deficit) Net income (loss) 137 (381,940) 347,182 Dividends on preferred stock - 30,854 - Dividends on common stock - 219,550 (268,851) Other - 5,176 (5,176) BALANCE AT DECEMBER 31, 1995 $11,447 ($2,568,764) $2,548,843 1/ See accompanying consolidating statements of changes in common stock equity. 2/ Par values, authorized shares, and outstanding shares are as follows: Par Value Cinergy $0.01 CG&E $8.50 PSI $.01 stated value Authorized shares (in thousands) Cinergy 600,000 CG&E 120,000 PSI 60,000 Outstanding Shares (in thousands) Cinergy 157,670 CG&E 89,663 PSI 53,914
EX-99.F.3 56
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami & Electric Company Power Company Gas Company Electric Company Power Corp. OPERATING REVENUES Electric $1,393,633 $187,180 - $510 $80 Gas 335,500 70,288 6,680 - - 1,729,133 257,468 6,680 510 80 OPERATING EXPENSES Fuel used in electric production 327,433 (80) - - - Gas purchased 166,394 36,745 3,376 - - Purchased and exchanged power Non-affiliated companies 13,870 - - - - Affiliated companies 42,575 142,388 - 356 - Other operation 263,773 30,712 1,364 66 40 Maintenance 89,922 4,580 141 15 30 Depreciation 147,132 11,438 397 18 1 Post-in-service deferred operating expenses - net 3,290 - - - - Amortization of phase-in deferrals 9,091 - - - - Income taxes 128,129 7,887 355 14 1 Taxes other than income taxes 199,404 3,968 290 13 6 1,391,013 237,638 5,923 482 78 OPERATING INCOME 338,120 19,830 757 28 2 OTHER INCOME AND EXPENSES - NET Allowance for equity funds used during construction 1,719 71 - - - Phase-in deferred return 8,537 - - - - Income taxes 4,723 (44) (2) - - Equity in earnings of subsidiaries 12,966 - - - - Other - net 6,888 6 5 - - 34,833 33 3 - - INCOME BEFORE INTEREST 372,953 19,863 760 28 2 INTEREST Interest on long-term debt 136,050 7,161 123 - - Other interest 2,988 728 33 4 - Allowance for borrowed funds used during construction (2,286) (198) (5) - - 136,752 7,691 151 4 - NET INCOME 236,201 12,172 609 24 2 PREFERRED DIVIDEND REQUIREMENT 17,673 - - - - INCOME APPLICABLE TO COMMON STOCK $218,528 $12,172 $609 $24 $2 1/ Includes $30,104 from affiliated companies
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co.Eliminations & Electric Company OPERATING REVENUES Electric - - ($144,180) $1,437,223 Gas - - (1,616) 410,852 - - (145,796) 1,848,075 OPERATING EXPENSES Fuel used in electric production - - - 327,353 Gas purchased - - (265) 206,250 Purchased and exchanged power Non-affiliated companies - - - 13,870 Affiliated companies - - (142,744) 42,575 Other operation - - (4,081) 291,874 Maintenance - - - 94,688 Depreciation - - - 158,986 Post-in-service deferred operating expenses - net - - - 3,290 Amortization of phase-in deferrals - - - 9,091 Income taxes - - - 136,386 Taxes other than income taxes - - (1) 203,680 - - (147,091) 1,488,043 OPERATING INCOME - - 1,295 360,032 OTHER INCOME AND EXPENSES - NET Allowance for equity funds used during construction - - - 1,790 Phase-in deferred return - - - 8,537 Income taxes (90) - - 4,587 Equity in earnings of subsidiaries - - (12,966) - Other - net 697 - (3,375) 4,221 607 - (16,341) 19,135 INCOME BEFORE INTEREST 607 - (15,046) 379,167 INTEREST Interest on long-term debt - - - 143,334 Other interest 1,812 - (2,079) 3,486 Allowance for borrowed funds used during construction (1,364) - (1) (3,854) 448 - (2,080) 142,966 NET INCOME 159 - (12,966) 236,201 PREFERRED DIVIDEND REQUIREMENT - - - 17,673 INCOME APPLICABLE TO COMMON STOCK $159 - ($12,966) $218,528 1/ Includes $30,104 from affiliated companies
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) The Union Light, The Cincinnati Gas Heat and Lawrenceburg & Electric Company Power Company Gas Company ASSETS UTILITY PLANT - ORIGINAL COST In service Electric $4,375,075 $188,508 - Gas 525,672 140,604 14,063 Common 164,354 19,068 - 5,065,101 348,180 14,063 Accumulated depreciation 1,613,137 112,812 3,549 3,451,964 235,368 10,514 Construction work in progress 69,768 7,863 30 Total utility plant 3,521,732 243,231 10,544 CURRENT ASSETS Cash and temporary cash investments 4,401 1,750 316 Restricted deposits 1,144 - - Accounts receivable - net 252,220 37,895 1,455 Accounts receivable from affiliated companies 67,522 - - Materials, supplies, and fuel - at average cost Fuel for use in electric production 40,395 - - Gas stored for current use 16,966 4,513 14 Other materials and supplies 54,173 1,215 - Property taxes applicable to subsequent year 114,472 2,350 - Prepayments and other 30,066 485 21 581,359 48,208 1,806 OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses 148,316 - - Phase-in deferred return and depreciation 100,388 - - Deferred demand-side management costs 19,158 - - Amounts due from customers - income taxes 397,146 - - Deferred merger costs 12,753 1,785 - Unamortized costs of reacquiring debt 36,899 2,526 3 Other 38,477 2,548 - Investment in subsidiaries 143,362 - - Other 24,101 1,499 12 920,600 8,358 15 $5,023,691 $299,797 $12,365 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $8.50 par value; authorized shares - 120,000,000; outstanding shares - 89,663,086 $762,136 - - Common stock of subsidiaries - 8,780 539 Paid-in capital 339,101 18,839 - Retained earnings 427,226 82,863 5,106 Total common stock equity 1,528,463 110,482 5,645 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption 40,000 - - Subject to mandatory redemption 160,000 - - LONG-TERM DEBT 1,647,072 54,377 1,200 Total capitalization 3,375,535 164,859 6,845 CURRENT LIABILITIES Long-term debt due within one year 136,500 15,000 - Accounts payable 121,610 11,057 576 Accounts payable to affiliated companies - 44,708 1,893 Accrued taxes 247,872 1,993 (72) Accrued interest 29,717 1,549 32 Other 39,316 5,505 318 575,015 79,812 2,747 OTHER LIABILITIES Deferred income taxes 768,198 23,728 894 Unamortized investment tax credits 124,044 5,079 234 Accrued pension and other postretirement benefit costs 104,960 12,202 461 Other 75,939 14,117 1,184 1,073,141 55,126 2,773 $5,023,691 $299,797 $12,365
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) West Harrison Gas and Miami Tri-State KO Electric Company Power Corp. Improvement Co. Transmission Co. ASSETS UTILITY PLANT - ORIGINAL COST In service Electric $565 $563 - - Gas - - - - Common - - - - 565 563 - - Accumulated depreciation 181 553 - - 384 10 - - Construction work in progress - - - - Total utility plant 384 10 - - CURRENT ASSETS Cash and temporary cash investments 25 28 92 - Restricted deposits - - - - Accounts receivable - net 75 - 848 - Accounts receivable from affiliated companies - - 594 - Materials, supplies, and fuel - at average cost Fuel for use in electric production - - - - Gas stored for current use - - - - Other materials and supplies - - - - Property taxes applicable to subsequent year - - - - Prepayments and other - - - - 100 28 1,534 - OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses - - - - Phase-in deferred return and depreciation - - - - Deferred demand-side management costs - - - - Amounts due from customers - income taxes 9 - - - Deferred merger costs - - - - Unamortized costs of reacquiring debt - - - - Other - - - - Investment in subsidiaries - - - - Other - - 29,079 - 9 - 29,079 - $493 $38 $30,613 - CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $8.50 par value; authorized shares - 120,000,000; outstanding shares - 89,663,086 - - - - Common stock of subsidiaries 20 1 25 - Paid-in capital - - - - Retained earnings 271 15 54 - Total common stock equity 291 16 79 - CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption - - - - Subject to mandatory redemption - - - - LONG-TERM DEBT - - 26,849 - Total capitalization 291 16 26,928 - CURRENT LIABILITIES Long-term debt due within one year - - - - Accounts payable - - 756 - Accounts payable to affiliated companies 94 13 - - Accrued taxes 3 4 389 - Accrued interest 1 - - - Other 6 - - - 104 17 1,145 - OTHER LIABILITIES Deferred income taxes 68 (32) 2,529 - Unamortized investment tax credits 14 1 - - Accrued pension and other postretirement benefit costs 14 4 - - Other 2 32 11 - 98 5 2,540 - $493 $38 $30,613 -
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated The Cincinnati Gas Eliminations & Electric Company ASSETS UTILITY PLANT - ORIGINAL COST In service Electric - $4,564,711 Gas - 680,339 Common - 183,422 - 5,428,472 Accumulated depreciation - 1,730,232 - 3,698,240 Construction work in progress - 77,661 Total utility plant - 3,775,901 CURRENT ASSETS Cash and temporary cash investments - 6,612 Restricted deposits - 1,144 Accounts receivable - net - 292,493 Accounts receivable from affiliated companies (46,707) 21,409 Materials, supplies, and fuel - at average cost Fuel for use in electric production - 40,395 Gas stored for current use - 21,493 Other materials and supplies - 55,388 Property taxes applicable to subsequent year - 116,822 Prepayments and other - 30,572 (46,707) 586,328 OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred operating expenses - 148,316 Phase-in deferred return and depreciation - 100,388 Deferred demand-side management costs - 19,158 Amounts due from customers - income taxes - 397,155 Deferred merger costs - 14,538 Unamortized costs of reacquiring debt - 39,428 Other - 41,025 Investment in subsidiaries (143,362) - Other - 54,691 (143,362) 814,699 ($190,069) $5,176,928 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $8.50 par value; authorized shares - 120,000,000; outstanding shares - 89,663,086 - $762,136 Common stock of subsidiaries (9,365) - Paid-in capital (18,839) 339,101 Retained earnings (88,309) 427,226 Total common stock equity (116,513) 1,528,463 CUMULATIVE PREFERRED STOCK Not subject to mandatory redemption - 40,000 Subject to mandatory redemption - 160,000 LONG-TERM DEBT (26,848) 1,702,650 Total capitalization (143,361) 3,431,113 CURRENT LIABILITIES Long-term debt due within one year - 151,500 Accounts payable - 133,999 Accounts payable to affiliated companies (46,708) - Accrued taxes - 250,189 Accrued interest - 31,299 Other - 45,145 (46,708) 612,132 OTHER LIABILITIES Deferred income taxes - 795,385 Unamortized investment tax credits - 129,372 Accrued pension and other postretirement benefit costs - 117,641 Other - 91,285 - 1,133,683 ($190,069) $5,176,928
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and & Electric Company Power Company Gas Company Electric Company Operating Activities Net income $236,201 $12,172 $609 $24 Items providing (using) cash currently: Depreciation 147,132 11,438 397 18 Deferred income taxes and investment tax credits - net 25,572 652 244 2 Allowance for equity funds used during construction (1,719) (71) - - Regulatory assets - net 16,484 170 - - Changes in current assets and current liabilities Restricted deposits (1,046) - - - Accounts receivable - net (68,712) (4,003) (317) 4 Materials, supplies, and fuel 12,144 1,894 1 - Accounts payable 9,319 34,110 470 (15) Accrued taxes and interest 23,588 (1,457) (387) 2 Other items - net (15,657) 5,019 30 16 Net cash provided by (used in) operating activities 383,306 59,924 1,047 51 Financing Activities Issuance of long-term debt 329,576 14,704 - - Retirement of preferred stock of subsidiaries (93,450) - - - Redemption of long-term debt (301,342) (37,036) - - Change in short-term debt - (14,500) - - Dividends on preferred stock (17,673) - - - Dividends on common stock (219,550) (3,512) - - Net cash provided by (used in) financing activities (302,439) (40,344) - - Investing Activities Construction expenditures (less allowance for equity funds used during construction) (118,538) (18,901) (841) (47) Deferred demand-side management costs - net (9,156) - - - Net cash provided by (used in) investing activities (127,694) (18,901) (841) (47) Net increase (decrease) in cash and temporary cash investments (46,827) 679 206 4 Cash and temporary cash investments at beginning of period 51,228 1,071 110 21 Cash and temporary cash investments at end of period $4,401 $1,750 $316 $25
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Miami Tri-State KO Power Corp. Improvement Co. Transmission Co. Eliminations Operating Activities Net income $2 $159 - ($12,966) Items providing (using) cash currently: Depreciation 1 - - - Deferred income taxes and investment tax credits - net - - - 468 Allowance for equity funds used during construction - - - - Regulatory assets - net - - - - Changes in current assets and current liabilities Restricted deposits - - - - Accounts receivable - net 1 (1,302) - 29,447 Materials, supplies, and fuel - - - - Accounts payable 13 (1,267) - (29,448) Accrued taxes and interest 1 188 - - Other items - net - 4,937 - 6,286 Net cash provided by (used in) operating activities 18 2,715 - (6,213) Financing Activities Issuance of long-term debt - - - - Retirement of preferred stock of subsidiaries - - - - Redemption of long-term debt - - - - Change in short-term debt - - - - Dividends on preferred stock - - - - Dividends on common stock (20) - - 3,532 Net cash provided by (used in) financing activities (20) - - 3,532 Investing Activities Construction expenditures (less allowance for equity funds used during construction) - (2,679) - 2,681 Deferred demand-side management costs - net - - - - Net cash provided by (used in) investing activities - (2,679) - 2,681 Net increase (decrease) in cash and temporary cash investments (2) 36 - - Cash and temporary cash investments at beginning of period 30 56 - - Cash and temporary cash investments at end of period $28 $92 - -
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated The Cincinnati Gas & Electric Company Operating Activities Net income $236,201 Items providing (using) cash currently: Depreciation 158,986 Deferred income taxes and investment tax credits - net 26,938 Allowance for equity funds used during construction (1,790) Regulatory assets - net 16,654 Changes in current assets and current liabilities Restricted deposits (1,046) Accounts receivable - net (44,882) Materials, supplies, and fuel 14,039 Accounts payable 13,182 Accrued taxes and interest 21,935 Other items - net 631 Net cash provided by (used in) operating activities 440,848 Financing Activities Issuance of long-term debt 344,280 Retirement of preferred stock of subsidiaries (93,450) Redemption of long-term debt (338,378) Change in short-term debt (14,500) Dividends on preferred stock (17,673) Dividends on common stock (219,550) Net cash provided by (used in) financing activities (339,271) Investing Activities Construction expenditures (less allowance for equity funds used during construction) (138,325) Deferred demand-side management costs - net (9,156) Net cash provided by (used in) investing activities (147,481) Net increase (decrease) in cash and temporary cash investments (45,904) Cash and temporary cash investments at beginning of period 52,516 Cash and temporary cash investments at end of period $6,612
THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) The Union Light, The West The Cincinnati Gas Heat and Lawrenceburg Harrison Gas and Miami & Electric Company Power Company Gas Company Electric Company Power Corp. BALANCE AT DECEMBER 31, 1994 $1,532,972 $101,822 $5,036 $267 $34 Paid-in capital 1,227 - - - - Retained earnings Net income 236,201 12,172 609 24 2 Dividends on preferred stock (17,673) - - - - Dividends on common stock (219,550) (3,512) - - (20) Other (4,714) - - - - BALANCE AT DECEMBER 31, 1995 $1,528,463 $110,482 $5,645 $291 $16
(CONTINUED) THE CINCINNATI GAS & ELECTRIC COMPANY CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated Tri-State KO The Cincinnati Gas Improvement Co. Transmission Co. Eliminations & Electric Company BALANCE AT DECEMBER 31, 1994 ($80) - ($107,079) $1,532,972 Paid-in capital - - - 1,227 Retained earnings Net income 159 - (12,966) 236,201 Dividends on preferred stock - - - (17,673) Dividends on common stock - - 3,532 (219,550) Other - - - (4,714) BALANCE AT DECEMBER 31, 1995 $79 - ($116,513) $1,528,463
EX-99.F.4 57
CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Power Consolidated Cinergy Equipment Wholesale Power PSI PSI Investments, Inc. Supply Co. Services, Inc. Recycling, Inc Argentina, Inc. OPERATING REVENUES $53 $5,012 $209 $4,778 $462 OPERATING EXPENSES Other operation 2,488 5,377 1,192 3,993 677 Income taxes (947) (957) (433) 281 577 Taxes other than income taxes 79 158 30 35 167 1,620 4,578 789 4,309 1,421 OPERATING INCOME (LOSS) (1,567) 434 (580) 469 (959) OTHER INCOME AND EXPENSES - NET Income taxes 1 1,426 - - (3,797) Equity in earnings of subsidiaries 1,898 - - - - Other - net (53) (3,735) (80) (8) 11,929 1,846 (2,309) (80) (8) 8,132 INCOME (LOSS) BEFORE INTEREST 279 (1,875) (660) 461 7,173 INTEREST Other interest 142 2 48 1 13 142 2 48 1 13 NET INCOME (LOSS) $137 ($1,877) ($708) $460 $7,160 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of income (loss). 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Power Cinergy Cinergy International, Inc.2/ Resources, Inc. CGE ECK, Inc. Technology, Inc. OPERATING REVENUES - - - - OPERATING EXPENSES Other operation - - - - Income taxes - - - - Taxes other than income taxes - - - - - - - - OPERATING INCOME (LOSS) - - - - OTHER INCOME AND EXPENSES - NET Income taxes 1,522 150 24 - Equity in earnings of subsidiaries - - - - Other - net (3,405) (359) (27) - (1,883) (209) (3) - INCOME (LOSS) BEFORE INTEREST (1,883) (209) (3) - INTEREST Other interest 944 57 41 - 944 57 41 - NET INCOME (LOSS) ($2,827) ($266) ($44) - 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of income (loss). 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Cinergy Eliminations Investments, Inc. 3/ OPERATING REVENUES - $10,514 OPERATING EXPENSES Other operation - 13,727 Income taxes - (1,479) Taxes other than income taxes - 469 - 12,717 OPERATING INCOME (LOSS) - (2,203) OTHER INCOME AND EXPENSES - NET Income taxes - (674) Equity in earnings of subsidiaries (1,898) - Other - net - 4,262 (1,898) 3,588 INCOME (LOSS) BEFORE INTEREST (1,898) 1,385 INTEREST Other interest - 1,248 - 1,248 NET INCOME (LOSS) ($1,898) $137 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of income (loss). 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
CINERGY INVESTMENTS, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Power Cinergy Equipment Wholesale Power PSI Investments, Inc. Supply Co. Services, Inc. Recycling, Inc. ASSETS CURRENT ASSETS Cash and temporary cash investments - - - - Restricted deposits - - - - Accounts receivable - net 44 212 27 565 Accounts receivable from affiliated companies - 3,155 - 362 Materials and supplies - - - 226 Prepayments and other - - 338 24 44 3,367 365 1,177 OTHER ASSETS Investment in subsidiaries 13,594 - - - Other 8 - - 951 13,602 - - 951 $13,646 $3,367 $365 $2,128 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock of subsidiaries - - - - Paid-in capital 24,418 4,563 985 1,434 Retained earnings (deficit) (12,971) 103 (1,470) 436 Total common stock equity 11,447 4,666 (485) 1,870 LONG-TERM DEBT - - - - Total capitalization 11,447 4,666 (485) 1,870 CURRENT LIABILITIES Accounts payable 337 402 17 69 Accounts payable to affiliated companies 1,777 25 756 22 Accrued taxes 144 (21) 72 (7) Other - - - - 2,258 406 845 84 OTHER LIABILITIES Deferred income taxes (60) (1,703) (25) 174 Other 1 (2) 30 - (59) (1,705) 5 174 $13,646 $3,367 $365 $2,128 1/ See accompanying consolidating balance sheets. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated Consolidated PSI Power Cinergy Argentina, Inc. International, Inc. Resources, Inc. CGE ECK, Inc. ASSETS CURRENT ASSETS Cash and temporary cash investments - $10,673 $1,653 - Restricted deposits - - 5 - Accounts receivable - net 207 295 3,886 - Accounts receivable from affiliated companies 17,020 - - - Materials and supplies - - - - Prepayments and other 179 - - - 17,406 10,968 5,544 - OTHER ASSETS Investment in subsidiaries - - - - Other (39) (7,774) 70 - (39) (7,774) 70 - $17,367 $3,194 $5,614 - CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock of subsidiaries - $50 - - Paid-in capital 9,587 - - - Retained earnings (deficit) 7,223 (8,155) (687) (475) Total common stock equity 16,810 (8,105) (687) (475) LONG-TERM DEBT - - - - Total capitalization 16,810 (8,105) (687) (475) CURRENT LIABILITIES Accounts payable 66 - 2,863 - Accounts payable to affiliated companies 124 13,353 3,412 684 Accrued taxes 57 904 8 (209) Other - 750 43 - 247 15,007 6,326 475 OTHER LIABILITIES Deferred income taxes 134 (4,103) (25) - Other 176 395 - - 310 (3,708) (25) - $17,367 $3,194 $5,614 - 1/ See accompanying consolidating balance sheets. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated Cinergy Cinergy Technology, Inc. Eliminations Investments, Inc. 2/ ASSETS CURRENT ASSETS Cash and temporary cash investments - - $12,326 Restricted deposits - - 5 Accounts receivable - net - - 5,236 Accounts receivable from affiliated companies - - 20,537 Materials and supplies - - 226 Prepayments and other - - 541 - - 38,871 OTHER ASSETS Investment in subsidiaries - (13,594) - Other - - (6,784) - (13,594) (6,784) - ($13,594) $32,087 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock of subsidiaries - ($50) - Paid-in capital - (16,569) 24,418 Retained earnings (deficit) - 3,025 (12,971) Total common stock equity (13,594) 11,447 LONG-TERM DEBT - - - Total capitalization (13,594) 11,447 CURRENT LIABILITIES Accounts payable - - 3,754 Accounts payable to affiliated companies - - 20,153 Accrued taxes - - 948 Other - - 793 - - 25,648 OTHER LIABILITIES Deferred income taxes - - (5,608) Other - - 600 - - (5,008) - ($13,594) $32,087 1/ See accompanying consolidating balance sheets. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Power Cinergy Equipment Wholesale Power PSI Investments, Inc. Supply Co. Services, Inc. Recycling, Inc. Operating Activities Net income (loss) $137 ($1,877) ($708) $460 Items providing (using) cash currently: Deferred income taxes and investment tax credits - net - (1,603) (1) 65 Changes in current assets and current liabilities Restricted deposits - - - - Accounts receivable - net - (2,139) (50) (474) Materials, supplies, and fuel - 5,451 - (24) Accounts payable 1,587 (47) 578 (88) Accrued taxes and interest 149 (29) 73 (5) Other items - net (1,876) 244 108 61 Net cash provided by (used in) operating activities (3) - - (5) Investing Activities Equity investment in Argentine utility - - - - Net cash provided by (used in) - - - - investing activities Net increase (decrease) in cash and temporary cash investments (3) - - (5) Cash and temporary cash investments at beginning of period 3 - - 5 Cash and temporary cash investments at end of period - - - - 1/ See accompanying consolidating statements of cash flows. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Consolidated PSI Power Cinergy Argentina, Inc. International 1/ Resources, Inc. CGE ECK, Inc. Operating Activities Net income (loss) $7,160 ($2,827) ($266) ($44) Items providing (using) cash currently: Deferred income taxes and investment tax credits - net - (2,204) 15 - Changes in current assets and current liabilities Restricted deposits - - (5) - Accounts receivable - net (17,105) (196) (3,886) - Materials, supplies, and fuel - - - - Accounts payable (12) 7,074 5,539 33 Accrued taxes and interest 50 1,066 33 5 Other items - net 121 6,186 218 - Net cash provided by (used in) operating activities (9,786) 9,099 1,648 (6) Investing Activities Equity investment in Argentine utility 9,786 - - - Net cash provided by (used in) 9,786 - - - investing activities Net increase (decrease) in cash and temporary cash investments - 9,099 1,648 (6) Cash and temporary cash investments at beginning of period - 1,574 5 6 Cash and temporary cash investments at end of period - $10,673 $1,653 - 1/ See accompanying consolidating statements of cash flows. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
(CONTINUED) CINERGY INVESTMENTS, INC. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Cinergy Cinergy Technology, Inc. Eliminations Investments, Inc. 2/ Operating Activities Net income (loss) - ($1,898) $137 Items providing (using) cash currently: Deferred income taxes and investment tax credits - net - - (3,728) Changes in current assets and current liabilities Restricted deposits - - (5) Accounts receivable - net - - (23,850) Materials, supplies, and fuel - - 5,427 Accounts payable - - 14,664 Accrued taxes and interest - - 1,342 Other items - net - 1,898 6,960 Net cash provided by (used in) operating activities - - 947 Investing Activities Equity investment in Argentine utility - - 9,786 Net cash provided by (used in) - - 9,786 investing activities Net increase (decrease) in cash and temporary cash investments - - 10,733 Cash and temporary cash investments at beginning of period - - 1,593 Cash and temporary cash investments at end of period - - $12,326 1/ See accompanying consolidating statements of cash flows. 2/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995
CINERGY INVESTMENTS CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Power Consolidated Cinergy Equipment Wholesale Power PSI PSI Investments, Inc. Supply Co. Services, Inc. Recycling, Inc. Argentina, Inc. 1/ BALANCE AT DECEMBER 31, 1994 $11,310 $6,543 $223 $1,410 $9,650 Retained earnings (deficit) Net income (loss) 137 (1,877) (708) 460 7,160 BALANCE AT DECEMBER 31, 1995 $11,447 $4,666 ($485) $1,870 $16,810 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of changes in common stock equity. 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
(CONTINUED) CINERGY INVESTMENTS CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated Power Cinergy Cinergy International, Inc. Resources, Inc. CGE ECK, Inc. Technology, Inc. Eliminations BALANCE AT DECEMBER 31, 1994 ($5,278) ($421) ($431) - ($11,696) Retained earnings (deficit) Net income (loss) (2,827) (266) (44) - (1,898) BALANCE AT DECEMBER 31, 1995 ($8,105) ($687) ($475) - ($13,594) 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of changes in common stock equity. 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
(CONTINUED) CINERGY INVESTMENTS CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated Cinergy Investments, Inc.3/ BALANCE AT DECEMBER 31, 1994 $11,310 Retained earnings (deficit) Net income (loss) 137 BALANCE AT DECEMBER 31, 1995 $11,447 1/ PSI Argentina, Inc. is the parent company of Costanera Power Corp., which did not have any activity for 1995. 2/ See accompanying consolidating statements of changes in common stock equity. 3/ PSI T&D International, Inc. is the parent company of PSI Yacyreta, Inc., neither of which had any activity for 1995.
EX-99.F.5 58
POWER INTERNATIONAL, INC. CONSOLIDATING STATEMENT OF LOSS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Beheer-En Consolidated Power Belegginsmaatschappij Power International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc. OTHER INCOME AND EXPENSES - NET Income taxes $1,522 $3 ($3) $1,522 Revenues - Sales services 9,008 1,824 (1,824) 9,008 Other revenue - 21 (21) - Wage and salary expense - (1,321) 1,321 - Other operating expense (6,113) (2,363) 2,363 (6,113) Depreciation expense - (79) 79 - Write-off of cash advances (6,300) - - (6,300) Other nonoperating expense - (40) 40 - (1,883) (1,955) 1,955 (1,883) LOSS BEFORE INTEREST (1,883) (1,955) 1,955 (1,883) INTEREST Other interest 944 121 (121) 944 944 121 (121) 944 NET LOSS ($2,827) ($2,076) $2,076 ($2,827) 1/ See accompanying consolidating statement of loss.
POWER INTERNATIONAL, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (dollars in thousands) Consolidated Beheer-En Consolidated Power Belegginsmaatschappij Power International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc. ASSETS CURRENT ASSETS Cash and temporary cash investments $10,673 $339 ($339) $10,673 Accounts receivable - net 295 546 (546) 295 Prepayments and other - 100 (100) - Other - 253 (253) 10,968 1,238 (1,238) 10,968 OTHER ASSETS Property and investments - net (7,774) 1,006 (1,006) (7,774) $3,194 $2,244 ($2,244) $3,194 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $500 stated value; authorized shares - 750; outstanding shares - 100 $50 - - $50 Common stock of subsidiaries - 24 (24) - Paid-in capital - 1,001 (1,001) - Retained deficit (8,155) (2,291) 2,291 (8,155) Total common stock equity (8,105) (1,266) 1,266 (8,105) CURRENT LIABILITIES Accounts payable to affiliated companies - net 13,353 500 (500) 13,353 Accrued taxes 904 6 (6) 904 Other 750 78 (78) 750 15,007 584 (584) 15,007 OTHER LIABILITIES (3,708) 2,926 (2,926) (3,708) $3,194 $2,244 ($2,244) $3,194 1/ See accompanying consolidating balance sheets.
POWER INTERNATIONAL, INC. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Beheer-En Consolidated Power Belegginsmaatschappij Power International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc. Operating Activities Net income (loss) ($2,827) ($2,076) $2,076 ($2,827) Items providing (using) cash currently: Changes in current assets and current liabilities: Accounts receivable - net (196) 313 (313) (196) Accounts payable 7,074 2,188 (2,188) 7,074 Prepaid expenses - 25 (25) - Other items - net 5,048 (1,160) 1,160 5,048 Net cash provided by (used in) operating activities 9,099 (710) 710 9,099 Investing Activities Additional paid-in capital - 950 (950) - - 950 (950) - Net increase (decrease) in cash and temporary cash investments 9,099 240 (240) 9,099 Cash and temporary cash investments at beginning of period 1,574 99 (99) 1,574 Cash and temporary cash investments at end of period $10,673 $339 ($339) $10,673 1/ See accompanying consolidating statements of cash flows.
POWER INTERNATIONAL, INC. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated Beheer-En Consolidated Power Belegginsmaatschappij Power International, Inc. Bruwabel B.V. 1/ Eliminations International, Inc. BALANCE AT DECEMBER 31, 1994 ($5,278) ($39) $39 ($5,278) Common stock Paid in capital - 950 (950) - Retained deficit Net loss (2,827) (2,076) 2,076 (2,827) Other - (101) 101 - BALANCE AT DECEMBER 31, 1995 ($8,105) ($1,266) $1,266 ($8,105) 1/ See accompanying consolidating statement of changes in common stock equity.
EX-99.F.6 59
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. CONSOLIDATING STATEMENT OF LOSS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Beheer-En Belegginsmaatschappij Power Power Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations OTHER INCOME AND EXPENSES - NET Income taxes $3 - - - Revenues - Sales services - 137 1,687 - Other revenue - 24 8 (11) Wage and salary expense (891) (301) (129) - Other operating expense (38) (671) (1,665) 11 Other nonoperating expense - (32) (8) - Equity in earnings of subsidiary (1,150) - - 1,150 Depreciation expense - (55) (24) - (2,076) (898) (131) 1,150 LOSS BEFORE INTEREST (2,076) (898) (131) 1,150 INTEREST Other interest - - 121 - NET LOSS ($2,076) ($898) ($252) $1,150
(CONTINUED) BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. CONSOLIDATING STATEMENT OF LOSS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Beheer-En Belegginsmaatschappij Bruwabel B.V. OTHER INCOME AND EXPENSES - NET Income taxes $3 Revenues - Sales services 1,824 Other revenue 21 Wage and salary expense (1,321) Other operating expense (2,363) Other nonoperating expense (40) Equity in earnings of subsidiary - Depreciation expense (79) (1,955) LOSS BEFORE INTEREST (1,955) INTEREST Other interest 121 NET LOSS ($2,076)
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (dollars in thousands) Beheer-En Belegginsmaatschappij Power Power Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations CURRENT ASSETS Cash and temporary cash investments $19 $143 $177 - Accounts receivable - net 3 166 377 - Prepayments - 100 - - Other 42 12 199 - 64 421 753 - OTHER ASSETS Investment in subsidiaries (1,313) - - 1,313 Property and investments - net - 87 919 - Other 12 - (12) (1,301) 87 919 1,301 ($1,237) $508 $1,672 $1,301 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - 125 Dutch Guilders stated value; authorized shares - 400; outstanding shares - 321 $24 - - - Equity in subsidiaries - 3 9 (12) Paid-in capital 1,001 1 - (1) Retained deficit (2,291) (952) (362) 1,314 Total common stock equity (1,266) (948) (353) 1,301 CURRENT LIABILITIES Accounts payable - 17 483 - Accrued taxes - 2 4 - Other 29 24 25 - 29 43 512 - OTHER LIABILITIES - 1,413 1,513 - ($1,237) $508 $1,672 $1,301
(CONTINUED) BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (dollars in thousands) Consolidated Beheer-En Belegginsmaatschappij Bruwabel B.V. CURRENT ASSETS Cash and temporary cash investments $339 Accounts receivable - net 546 Prepayments 100 Other 253 1,238 OTHER ASSETS Investment in subsidiaries - Property and investments - net 1,006 Other - 1,006 $2,244 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - 125 Dutch Guilders stated value; shares - 400; outstanding shares - 321 $24 Equity in subsidiaries - Paid-in capital 1,001 Retained deficit (2,291) Total common stock equity (1,266) CURRENT LIABILITIES Accounts payable 500 Accrued taxes 6 Other 78 584 OTHER LIABILITIES 2,926 $2,244
BEHEER-EN BELEGINSMAATSCHAPIJ BRUWABEL B.V. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Beheer-En Belegginsmaatschappij Power Power Bruwabel B.V. International s.r.o Development s.r.o. Eliminations Operating Activities Net income (loss) ($2,076) ($898) ($252) $1,150 Items providing (using) cash currently: Depreciation expense - 55 24 - Changes in current assets and current liabilities: Accounts receivable - net (2) 681 (366) - Accounts payable 5 300 1,883 - Prepaid expenses - 31 (6) - Other items - net (16) (112) (1,111) - Net cash provided by (used in) operating activities (2,089) 57 172 1,150 Investing Activities Investment in subsidiaries (1,263) - - 1,263 Additional paid-in capital 950 - - - Other 2,413 - - (2,413) Net cash provided by (used in) investing activities 2,100 - - (1,150) Net increase (decrease) in cash and temporary cash investments 11 57 172 - Cash and temporary cash investments at beginning of period 8 86 5 - Cash and temporary cash investments at end of period $19 $143 $177 -
(CONTINUED) BEHEER-EN BELEGINSMAATSCHAPIJ BRUWABEL B.V. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated Beheer-En Belegginsmaatschappij Bruwabel B.V. Operating Activities Net income (loss) ($2,076) Items providing (using) cash currently: Depreciation expense 79 Changes in current assets and current liabilities: Accounts receivable - net 313 Accounts payable 2,188 Prepaid expenses 25 Other items - net (1,239) Net cash provided by (used in) operating activities (710) Investing Activities Investment in subsidiaries - Additional paid-in capital 950 Other - Net cash provided by (used in) investing activities 950 Net increase (decrease) in cash and temporary cash investments 240 Cash and temporary cash investments at beginning of period 99 Cash and temporary cash investments at end of period $339
BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL, B.V. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Beheer-En Belegginsmaatschappij Power Power Bruwabel B.V. International s.r.o. Development s.r.o. Eliminations BALANCE AT DECEMBER 31, 1994 ($39) ($47) $4 $43 Equity of subsidiaries - - - - Paid in capital 950 1 - (1) Retained deficit Net loss (2,076) (898) (252) 1,150 Other (101) (4) (105) 109 BALANCE AT DECEMBER 31, 1995 ($1,266) ($948) ($353) $1,301
(CONTINUED) BEHEER-EN BELEGGINSMAATSCHAPPIJ BRUWABEL, B.V. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated Beheer-En Belegginsmaatschappij Bruwabel B.V. BALANCE AT DECEMBER 31, 1994 ($39) Equity of subsidiaries - Paid in capital 950 Retained deficit Net loss (2,076) Other (101) BALANCE AT DECEMBER 31, 1995 ($1,266)
EX-99.F.7 60
PSI ENERGY, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) PSI Energy Consolidated PSI Energy, Inc. Argentina, Inc. Eliminations PSI Energy, Inc. ASSETS ELECTRIC UTILITY PLANT - ORIGINAL COST In service $4,052,984 - - $4,052,984 Accumulated depreciation 1,637,169 - - 1,637,169 2,415,815 - - 2,415,815 Construction work in progress 58,191 - - 58,191 Total electric utility plant 2,474,006 - - 2,474,006 CURRENT ASSETS Cash and temporary cash investments 15,522 - - 15,522 Restricted deposits 1,187 - - 1,187 Accounts receivable - net 73,419 - - 73,419 Accounts receivable from affiliated companies 20,568 - - 20,568 Materials, supplies, and fuel - at average cost Fuel for use in electric production 82,014 - - 82,014 Other materials and supplies 29,462 - - 29,462 Prepayments and other 1,234 - - 1,234 223,406 - - 223,406 OTHER ASSETS Regulatory assets Post-in-service carrying costs and deferred 38,874 - - 38,874 Deferred demand-side management costs 110,242 - - 110,242 Amounts due from customers - income taxes 26,338 - - 26,338 Deferred merger costs 42,286 - - 42,286 Unamortized costs of reacquiring debt 34,476 - - 34,476 Other 33,886 - - 33,886 Investment in subsidiary 10,705 (10,705) - Other 81,351 10,705 - 92,056 378,158 10,705 (10,705) 378,158 $3,075,570 $10,705 ($10,705) $3,075,570 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Common stock - $.01 stated value; authorized shares - 60,000,000; outstanding shares - 53,913,701 $539 - - $539 Paid-in capital 403,253 10,705 (10,705) 403,253 Accumulated earnings subsequent to November 30, 1986 reorganization 625,275 - - 625,275 Total common stock equity 1,029,067 10,705 (10,705) 1,029,067 CUMULATIVE PREFERRED STOCK - NOT SUBJECT TO MANDATORY REDEMPTION 187,897 - - 187,897 LONG-TERM DEBT 828,116 - - 828,116 Total capitalization 2,045,080 10,705 (10,705) 2,045,080 CURRENT LIABILITIES Long-term debt due within one year 50,400 - - 50,400 Notes payable 198,531 - - 198,531 Accounts payable 116,817 - - 116,817 Litigation settlement 80,000 - - 80,000 Accrued taxes 65,851 - - 65,851 Accrued interest 24,696 - - 24,696 Other 16,000 - - 16,000 552,295 - - 552,295 OTHER LIABILITIES Deferred income taxes 331,876 - - 331,876 Unamortized investment tax credits 56,354 - - 56,354 Accrued pension and other postretirement benefi 54,130 - - 54,130 Other 35,835 - - 35,835 478,195 - - 478,195 $3,075,570 $10,705 ($10,705) $3,075,570
PSI ENERGY, INC. CONSOLIDATING STATEMENT OF CHANGES IN COMMON STOCK EQUITY (in thousands) Consolidated PSI PSI Energy PSI Energy, Inc. Argentina, Inc. Eliminations Energy, Inc. BALANCE AT DECEMBER 31, 1994 $882,951 - - $882,951 Paid in capital 18 10,705 (10,705) 18 Capital contribution from parent company 13,926 13,926 Retained earnings Net income 145,815 - - 145,815 Dividends on preferred stock (13,181) - - (13,181) Other (462) - - (462) BALANCE AT DECEMBER 31, 1995 $1,029,067 $10,705 ($10,705) $1,029,067
EX-99.F.8 61
PSI ARGENTINA, INC. CONSOLIDATING BALANCE SHEETS DECEMBER 31, 1995 (in thousands) Consolidated PSI Costanera PSI Argentina, Inc. Power Corp. Eliminations Argentina, Inc. ASSETS CURRENT ASSETS Accounts receivable - net $207 - - $207 Accounts receivable from affiliated companies 17,020 - - 17,020 Prepayments and other 179 - - 179 17,406 - - 17,406 OTHER ASSETS Other (39) - - (39) $17,367 - - $17,367 CAPITALIZATION AND LIABILITIES COMMON STOCK EQUITY Paid-in capital $9,587 - - $9,587 Retained earnings 7,223 - - 7,223 Total common stock equity 16,810 - - 16,810 CURRENT LIABILITIES Accounts payable 66 - - 66 Accounts payable to affiliated companies 124 - - 124 Accrued taxes 57 - - 57 247 - - 247 OTHER LIABILITIES Deferred income taxes 134 - - 134 Other 176 - - 176 310 - - 310 $17,367 - - $17,367
PSI ARGENTINA, INC. CONSOLIDATING STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 1995 (in thousands) Consolidated PSI Costanera PSI Argentina, Inc. Power Corp. Eliminations Argentina, Inc. Operating Activities Net income $7,160 - - $7,160 Items providing (using) cash currently: Changes in current assets and current liabilities Accounts receivable - net (17,105) - - (17,105) Accounts payable (12) - - (12) Accrued taxes and interest 50 - - 50 Other items - net 121 (9,786) 9,786 121 Net cash provided by (used in) operating activities (9,786) (9,786) 9,786 (9,786) Investing Activities Equity investment in Argentine utility 9,786 9,786 (9,786) 9,786 Net cash provided by (used in) 9,786 9,786 (9,786) 9,786 investing activities Net increase (decrease) in cash and temporary cash investments - - - - Cash and temporary cash investments at beginning of period - - - - Cash and temporary cash investments at end of period - - - -
EX-99.F.9 62 ITEM 6. Part III - SUPPLEMENTAL INFORMATION REGARDING COMPENSATION AND SECURITY OWNERSHIP OF OFFICERS AND DIRECTORS OF SYSTEM COMPANIES (a) Directors' and Executive Officers' Compensation PSI (including subsidiaries) William J. Grealis is also an officer of PSI Energy Argentina. See Cinergy's disclosure on pages 12 through 23 of the Proxy Statement for the required information regarding Mr. Grealis' compensation. (b) Security Ownership of Certain Beneficial Owners and Management Cinergy (including Investments and subsidiaries) The beneficial ownership of Cinergy's common stock held by each nominee, continuing director, and named executive officer, including those of Investments and subsidiaries (as identified on pages 10-12 of this Annual Report on Form U5S (U5S)) and of units equal to one share of Cinergy's common stock paid as compensation to non-employee directors, as of December 31, 1995, is set forth in the following table. Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3) Neil A. Armstrong 3,250 shares James K. Baker 16,105 shares 1,324 Michael G. Browning 21,335 shares 4,254 Clement L. Buenger 3,250 shares Phillip R. Cox 2,738 shares Kenneth M. Duberstein 15,491 shares William J. Grealis 300 shares John A. Hillenbrand II 30,759 shares 3,821 George C. Juilfs 6,250 shares J. Wayne Leonard 74,060 shares John M. Mutz 34,740 shares Melvin Perelman 26,725 shares 3,975 Thomas E. Petry 4,500 shares Jackson H. Randolph 75,658 shares James E. Rogers 252,582 shares John J. Schiff, Jr. 43,559 shares (4) Philip R. Sharp none Van P. Smith 19,890 shares Dudley S. Taft 5,500 shares Larry E. Thomas 75,640 shares Oliver W. Waddell 6,653 shares All directors and executive officers as a group 912,288 shares (2) (representing 0.58% of the class) ___________ (1) No individual listed beneficially owned more than 0.16% of the outstanding shares of Cinergy's common stock. (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Armstrong-2,500; Mr. Baker-15,287; Mr. Browning-15,287; Mr. Buenger-2,500; Mr. Cox-2,500; Mr. Duberstein-15,287; Mr. Hillenbrand-15,287; Mr. Juilfs- 2,500; Mr. Leonard-57,611; Mr. Mutz-32,787; Mr. Perelman-15,287; Mr. Petry- 2,500; Mr. Randolph-50,000; Mr. Rogers-189,403; Mr. Schiff-2,500; Mr. Smith- 15,287; Mr. Taft-2,500; Mr. Thomas-51,107; Mr. Waddell-2,500; and all directors and executive officers as a group-635,605. (3) Each unit represents one share of Cinergy's common stock credited to the account of the respective directors as of December 31, 1995, under the Cinergy Directors' Deferred Compensation Plan. (4) Includes 15,000 shares owned of record by a trust of which Mr. Schiff is one of three trustees who share voting and investment power equally. Does not include 1,486,600 shares, as to which Mr. Schiff disclaims any beneficial interest, held by Cincinnati Financial Corporation and certain of its subsidiaries. CG&E (including subsidiaries) CG&E's (and subsidiaries') directors and executive officers (as identified on page 10 of this U5S) did not beneficially own any shares of any series of the class of CG&E's cumulative preferred stock as of December 31, 1995. The beneficial ownership of the outstanding shares of Cinergy's common stock held by each director and named executive officer as of December 31, 1995, is set forth in the following table. Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) Cheryl M. Foley 71,592 shares William J. Grealis 300 shares J. Wayne Leonard 74,060 shares Jackson H. Randolph 75,658 shares James E. Rogers 252,582 shares Larry E. Thomas 75,640 shares All directors and executive officers as a group 678,453 shares (2) (representing .043% of the class) ___________ (1) No individual listed beneficially owned more than 0.16% of the outstanding shares of Cinergy's common stock. (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Ms. Foley-57,397; Mr. Leonard-57,611; Mr. Randolph-50,000; Mr. Rogers-189,403; Mr. Thomas-51,107; and all directors and executive officers as a group-491,093. PSI (including subsidiaries) PSI's (and subsidiaries') director-nominees and named executive officers (as identified on page 11 of this U5S) did not beneficially own any shares of any series of the class of PSI's cumulative preferred stock as of December 31, 1995. The beneficial ownership of the outstanding shares of Cinergy's common stock held by each director-nominee and named executive officer, and of units equal to one share of Cinergy common stock paid as compensation to non- employee directors of Cinergy, as of December 31, 1995, is set forth in the following table. Amount and Nature Name of Beneficial Owner (1) of Beneficial Ownership (2) Units (3) James K. Baker 16,105 shares 1,324 Michael G. Browning 21,335 shares 4,254 Cheryl M. Foley 71,592 shares John A. Hillenbrand II 30,759 shares 3,821 J. Wayne Leonard 74,060 shares John M. Mutz 34,740 shares Jackson H. Randolph 75,658 shares James E. Rogers 252,582 shares Van P. Smith 19,890 shares Larry E. Thomas 75,640 shares All directors and executive officers as a group 789,304 shares (2) (representing 0.50% of the class) ___________ (1) No individual listed beneficially owned more than 0.16% of the outstanding shares of Cinergy's common stock. William J. Grealis is also an officer of PSI Energy Argentina. See Cinergy's disclosure on page 11 of the Proxy Statement for the required information regarding Mr. Grealis' security ownership. (2) Includes shares which there is a right to acquire within 60 days pursuant to the exercise of stock options in the following amounts: Mr. Baker-15,287; Mr. Browning-15,287; Ms. Foley-57,397; Mr. Hillenbrand- 15,287; Mr. Leonard-57,611; Mr. Mutz-32,787; Mr. Randolph-50,000; Mr. Rogers- 189,403; Mr. Smith-15,287; Mr. Thomas-51,107; and all directors and executive officers as a group-585,030. As indicated in Note 1 above, William J. Grealis is also an officer of PSI Energy Argentina. See Cinergy's disclosure on page 11 of the Proxy Statement for the required information regarding Mr. Grealis' security ownership. (3) Each unit represents one share of Cinergy's common stock credited to the account of the respective directors as of December 31, 1995, under Cinergy's Directors' Deferred Compensation Plan. EX-27.0 63
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 0 CINERGY CORP. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 6,251,148 0 786,685 1,046,110 136,121 8,220,064 1,577 1,597,050 950,216 2,548,843 160,000 227,897 2,530,766 165,800 0 0 201,900 0 0 0 2,384,858 8,220,064 3,031,433 219,462 2,229,839 2,449,301 582,132 22,575 604,707 226,672 378,035 30,853 347,182 268,851 213,911 703,395 2.22 2.22 EX-27.1 64
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 1 CINERGY CORP. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 2,563,727 27,547 0 (10) 2,591,264 1,577 1,597,050 950,216 2,548,843 0 0 0 0 0 0 0 0 0 0 42,421 2,591,264 0 (488) 865 377 (377) 349,412 349,035 1,853 347,182 0 347,182 268,851 0 253,075 0.00 0.00 EX-27.2 65
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 2 CINERGY SERVICES, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 1,241 0 14,116 0 602 15,959 0 0 (213) (213) 0 0 0 0 0 0 0 0 0 0 16,172 15,959 190,167 0 190,375 190,375 (208) (1) (209) 4 (213) 0 (213) 0 0 0 0.00 0.00 EX-27.3 66
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 3 PSI ENERGY, INC. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 2,474,006 0 223,406 286,102 92,056 3,075,570 539 403,253 625,275 1,029,067 0 187,897 828,116 198,531 0 0 50,400 0 0 0 781,559 3,075,570 1,248,035 85,043 936,103 1,021,146 226,889 1,113 228,002 82,187 145,815 13,180 132,635 0 70,577 256,659 0.00 0.00 EX-27.4 67
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 4 PSI ENERGY, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 2,474,006 10,705 223,406 286,102 81,351 3,075,570 539 403,253 625,275 1,029,067 0 187,897 828,116 198,531 0 0 50,400 0 0 0 781,559 3,075,570 1,248,035 85,043 936,103 1,021,146 226,889 1,113 228,002 82,187 145,815 13,180 132,635 0 70,577 256,659 0.00 0.00 EX-27.5 68
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 5 THE CINCINNATI GAS & ELECTRIC CO. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 3,775,901 0 586,328 760,008 54,691 5,176,928 762,136 339,101 427,226 1,528,463 160,000 40,000 1,702,650 0 0 0 151,500 0 0 0 1,594,315 5,176,928 1,848,075 136,386 1,351,657 1,488,043 360,032 19,135 379,167 142,966 236,201 17,673 218,528 219,550 143,334 440,848 0.00 0.00 EX-27.6 69
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 6 THE CINCINNATI GAS & ELECTRIC CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 3,521,732 143,362 581,359 753,137 24,101 5,023,691 762,136 339,101 427,226 1,528,463 160,000 40,000 1,647,072 0 0 0 136,500 0 0 0 1,511,656 5,023,691 1,729,133 128,129 1,262,884 1,391,013 338,120 34,833 372,953 136,752 236,201 17,673 218,528 219,550 136,050 383,306 0.00 0.00 EX-27.7 70
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 7 THE UNION LIGHT, HEAT AND POWER CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 243,231 0 48,208 6,859 1,499 299,797 8,780 18,839 82,863 110,482 0 0 54,377 0 0 0 15,000 0 0 0 119,938 299,797 257,468 7,887 229,751 237,638 19,830 33 19,863 7,691 12,172 0 12,172 3,512 7,161 59,924 0.00 0.00 EX-27.8 71
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 8 THE WEST HARRISON GAS AND ELECTRIC CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 384 0 100 0 9 493 20 0 271 291 0 0 0 0 0 0 0 0 0 0 202 493 510 14 468 482 28 0 28 4 24 0 24 0 0 51 0.00 0.00 EX-27.9 72
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 9 LAWRENCEBURG GAS CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 10,544 0 1,806 3 12 12,365 539 0 5,106 5,645 0 0 1,200 0 0 0 0 0 0 0 5,520 12,365 6,680 355 5,568 5,923 757 3 760 151 609 0 609 0 123 1,047 0.00 0.00 EX-27.10 73
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 10 MIAMI POWER CORP. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 10 0 28 0 0 38 1 0 15 16 0 0 0 0 0 0 0 0 0 0 22 38 80 1 77 78 2 0 2 0 2 0 2 20 0 18 0.00 0.00 EX-27.11 74
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 11 KO TRANSMISSION CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.00 0.00 EX-27.12 75
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 12 TRI-STATE IMPROVEMENT CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 1,534 0 29,079 30,613 25 0 54 79 0 0 26,849 0 0 0 0 0 0 0 3,685 30,613 0 0 0 0 0 607 607 448 159 0 159 0 0 2,715 0.00 0.00 EX-27.13 76
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 13 CINERGY INVESTMENTS, INC. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 38,871 0 (6,784) 32,087 0 24,418 (12,971) 11,447 0 0 0 0 0 0 0 0 0 0 20,640 32,087 10,514 (1,479) 14,196 12,717 (2,203) 3,588 1,385 1,248 137 0 137 0 0 947 0.00 0.00 EX-27.14 77
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 14 CINERGY INVESTMENTS, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 13,594 44 0 8 13,646 0 24,418 (12,971) 11,447 0 0 0 0 0 0 0 0 0 0 2,199 13,646 53 (947) 2,567 1,620 (1,567) 1,846 279 142 137 0 137 0 0 (3) 0.00 0.00 EX-27.15 78
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 15 POWER INTERNATIONAL, INC. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 (7,774) 10,968 0 0 3,194 50 0 (8,155) (8,105) 0 0 0 0 0 0 0 0 0 0 11,299 3,194 0 0 0 0 0 (1,883) (1,883) 944 (2,827) 0 (2,827) 0 0 9,099 0.00 0.00 EX-27.16 79
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 16 POWER INTERNATIONAL, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 (7,774) 10,968 0 0 3,194 50 0 (8,155) (8,105) 0 0 0 0 0 0 0 0 0 0 11,299 3,194 0 0 0 0 0 (1,883) (1,883) 944 (2,827) 0 (2,827) 0 0 9,099 0.00 0.00 EX-27.17 80
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 17 BEHEER- EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V.(CONS.) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 1,006 1,238 0 0 2,244 24 1,001 (2,291) (1,266) 0 0 0 0 0 0 0 0 0 0 3,510 2,244 0 0 0 0 0 (1,955) (1,955) 121 (2,076) 0 (2,076) 0 0 (710) 0.00 0.00 EX-27.18 81
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 18 BEHEER- EN BELEGGINSMAATSCHAPPIJ BRUWABEL B.V. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 64 0 (1,301) (1,237) 24 1,001 (2,291) (1,266) 0 0 0 0 0 0 0 0 0 0 29 (1,237) 0 0 0 0 0 (2,076) (2,076) 0 (2,076) 0 (2,076) 0 0 (2,089) 0.00 0.00 EX-27.19 82
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 19 POWER INTERNATIONAL S.R.O. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 87 421 0 0 508 0 4 (952) (948) 0 0 0 0 0 0 0 0 0 0 1,456 508 0 0 0 0 0 (898) (898) 0 (898) 0 (898) 0 0 57 0.00 0.00 EX-27.20 83
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 20 POWER DEVELOPMENT S.R.O. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 919 753 0 0 1,672 0 9 (362) (353) 0 0 0 0 0 0 0 0 0 0 2,025 1,672 0 0 0 0 0 (131) (131) 121 (252) 0 (252) 0 0 172 0.00 0.00 EX-27.21 84
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 21 PSI RECYCLING, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 1,177 0 951 2,128 0 1,434 436 1,870 0 0 0 0 0 0 0 0 0 0 258 2,128 4,778 281 4,028 4,309 469 (8) 461 1 460 0 460 0 0 (5) 0.00 0.00 EX-27.22 85
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 22 POWER EQUIPMENT SUPPLY CO. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 3,367 0 0 3,367 0 4,563 103 4,666 0 0 0 0 0 0 0 0 0 0 (1,299) 3,367 5,012 (957) 5,535 4,578 434 (2,309) (1,875) 2 (1,877) 0 (1,877) 0 0 0 0.00 0.00 EX-27.23 86
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 23 WHOLESALE POWER SERVICES, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 365 0 0 365 0 985 (1,470) (485) 0 0 0 0 0 0 0 0 0 0 850 365 209 (433) 1,222 789 (580) (80) (660) 48 (708) 0 (708) 0 0 0 0.00 0.00 EX-27.24 87
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 24 CINERGY RESOURCES, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 5,544 0 70 5,614 0 0 (687) (687) 0 0 0 0 0 0 0 0 0 0 6,301 5,614 0 0 0 0 0 (209) (209) 57 (266) 0 (266) 0 0 1,648 0.00 0.00 EX-27.25 88
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 25 CGE ECK, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 0 0 0 0 0 0 (475) (475) 0 0 0 0 0 0 0 0 0 0 475 0 0 0 0 0 0 (3) (3) 41 (44) 0 (44) 0 0 (6) 0.00 0.00 EX-27.26 89
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 26 PSI ENERGY ARGENTINA, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 0 0 10,705 10,705 0 10,705 0 10,705 0 0 0 0 0 0 0 0 0 0 0 10,705 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.00 0.00 EX-27.27 90
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 27 PSI ARGENTINA, INC. (CONSOLIDATED) 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 17,406 0 (39) 17,367 0 9,587 7,223 16,810 0 0 0 0 0 0 0 0 0 0 557 17,367 462 577 844 1,421 (959) 8,132 7,173 13 7,160 0 7,160 0 0 (9,786) 0.00 0.00 EX-27.28 91
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 28 PSI ARGENTINA, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 17,406 0 (39) 17,367 0 9,587 7,223 16,810 0 0 0 0 0 0 0 0 0 0 557 17,367 462 577 844 1,421 (959) 8,132 7,173 13 7,160 0 7,160 0 0 (9,786) 0.00 0.00 EX-27.29 92
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 29 COSTANERA POWER CORP. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 (9,786) 0.00 0.00 EX-27.30 93
OPUR1 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE SHEETS AND STATEMENTS OF INCOME AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS 0000899652 CINERGY CORP. 30 CINERGY TECHNOLOGY, INC. 1,000 YEAR DEC-31-1995 JAN-01-1995 DEC-31-1995 PER-BOOK 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0.00 0.00 EX-99.I.1 94 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To PSI Energy Argentina, Inc.: We have audited the accompanying balance sheets of PSI ENERGY ARGENTINA, INC. (an Indiana corporation) as of December 31, 1995 and 1994. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the balance sheets are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheets. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the balance sheets referred to above present fairly, in all material respects, the financial position of PSI Energy Argentina, Inc. as of December 31, 1995 and 1994, in conformity with generally accepted accounting principles. ARTHUR ANDERSEN LLP Indianapolis, Indiana, April 19, 1996. PSI ENERGY ARGENTINA, INC. BALANCE SHEETS (dollars in thousands) December 31, 1995 1994 ASSETS OTHER ASSETS Investment in Distrile $10,705 $10,705 $10,705 $10,705 CAPITALIZATION COMMON STOCK EQUITY Common Stock - no par value; authorized shares - 100,000,000; outstanding shares - $ - $ - Paid-in capital 10,705 10,705 $10,705 $10,705 The accompanying notes are an integral part of these financial statements. PSI ENERGY ARGENTINA, INC. NOTES TO THE FINANCIAL STATEMENTS 1. Summary of Significant Accounting Policies (a) Nature of Operations PSI Energy Argentina, Inc. (PSI Energy Argentina or Company) is a foreign utility company under the Public Utility Holding Company Act of 1935 (PUHCA). PSI Energy Argentina is an Indiana corporation that was formed to invest in foreign utility companies. The Company and its parent, PSI Energy, Inc. (PSI), an Indiana electric utility, are subsidiaries of Cinergy Corp. (Cinergy), a registered holding company under the PUHCA. As of December 31, 1995, PSI Energy Argentina holds an 8% interest in Distrilec Invesora, S.A. (Distrilec). Distrilec, as a member of a multinational consortium, owns a 51% interest in Empresa Distribuidora Sur S.A. (Edesur), an electric distribution network serving the southern half of the city of Buenos Aires, Argentina. Distrilec acquired its 51% interest in connection with the privatization of electric generation and distribution assets in Argentina. Pursuant to the privatization process, the Argentine government retained 39% of the shares for subsequent sale and distributed 10% of the shares to Edesur employees. In late 1995, the Argentine government sold its remaining 39% ownership interest at book value, which approximates the cost that Distrilec paid for its interest in Edesur. The Argentine government has placed a five-year restriction on the sale of Edesur stock, requiring the Company to hold its investment until at least September 1, 1997, unless special approval is obtained from the Argentine government. (b) Basis of Accounting PSI Energy Argentina uses the cost method to account for its investment in Distrilec. Currently, the shares of Edesur are not publicly traded. (c) Management's Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities. Estimates are also required with respect to the disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. (See Note 2.) (d) Income Taxes PSI Energy Argentina complies with the provisions of Statements of Financial Accounting Standards No. 109, Accounting for Income Taxes (Statement 109). Statement 109 requires recognition of deferred tax assets and liabilities for the expected future tax consequences of existing differences between the financial reporting and tax reporting bases of assets and liabilities. PSI Energy Argentina had no deferred tax assets or liabilities at year-end. PSI Energy Argentina calculates its tax liability on a stand-alone basis. For the year ended 1995, the Company had no stand-alone taxable income. PSI Energy Argentina will participate in the filing of a consolidated Federal income tax return with PSI's parent holding company, Cinergy, and other affiliated companies for the year ended December 31, 1995. The current tax liability is allocated among the members of the group pursuant to a tax sharing agreement consistent with Rule 45(c) of the PUHCA. (e) Revenues and Expenses For the year ended December 31, 1995, PSI Energy Argentina did not earn any revenues, incur any expenses, or sustain any impairment of its investment in Distrilec; therefore, the Statements of Income, Cash Flows, and Changes in Common Stock Equity are not applicable. The Company receives certain administrative, management, and support services from affiliate companies. These services are immaterial and are therefore not reflected in the financial statements. However, in 1996, PSI Energy Argentina expects to earn revenues in connection with an agreement to provide consulting and engineering services to Edesur and fees earned as a co-operator of the distribution network. 2. Commitments PSI Energy Argentina is committed to invest up to $12 million in Distrilec. The Company does not anticipate making any future cash payments but could incur a liability to invest an additional $2 million in the event that the operations of Distrilec require additional capital. -----END PRIVACY-ENHANCED MESSAGE-----