CERTIFICATE OF INCORPORATION
OF
Cinergy Corp.
(as amended through may 10, 2001)
The undersigned, for the purpose of organizing a corporation under the
General Corporation Law of the State of Delaware (the "DGCL"), certifies:
FIRST: The name of the corporation is Cinergy Corp.
SECOND: The address of the corporation's registered office in the State of
Delaware is 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 DGCL.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is 610,000,000 shares, of which 600,000,000 shares shall
be designated common stock, par value $.01 per share, and 10,000,000 shares
shall be designated preferred stock, par value $.01 per share. Except as
provided in this Certificate of Incorporation, each holder of common stock shall
have one vote in respect of each share of stock held by him on all matters
submitted to a vote of stockholders of the corporation. In the election of
directors of the corporation, the principle of cumulative voting shall not
apply.
The Board of Directors is hereby expressly authorized to provide for,
designate and issue out of the authorized but unissued shares of preferred
stock, one or more series of preferred stock, subject to the terms and
conditions set forth herein. Before any shares of any such series are issued,
the Board of Directors shall fix, and hereby is expressly empowered to fix, by
resolution or resolutions, the following provisions of the shares of any such
series:
i. the designation of such series, the number of shares to constitute such
series and the stated value thereof, if different from the par value
thereof;
ii. whether the shares of such series shall have voting rights or powers, in
addition to any voting rights required by law, and, if so, the terms of
such voting rights or powers, which may be full or limited;
iii. the dividends, if any, payable on such series, whether any such dividends
shall be cumulative, and, if so, from what dates, the conditions and dates
upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any other
series of preferred stock or on any other class of stock of the corporation
or any series of such class;
iv. whether the shares of such series shall be subject to redemption by the
corporation, and, if so, the times, prices and other conditions of such
redemption;
v. the amount or amounts payable upon shares of such series upon, and the
rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the
assets, of the corporation and the preference or relation which such amount
or amounts shall bear to the amount or amounts payable on any other series
of preferred stock or on any other class of stock of the corporation or any
series of such class;
vi. whether the shares of such series shall be subject to the operation of a
retirement or sinking fund and, if so, the extent to and manner in which
any such retirement or sinking fund shall be applied to the purchase or
redemption of the shares of such series for retirement or other corporate
purposes and the terms and provisions relative to the operation thereof;
vii. whether the shares of such series shall be convertible into, or
exchangeable for, shares of preferred stock of any other series or any
other class of stock of the corporation or any series of such class or any
other securities and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any other terms and conditions of such conversion or exchange;
viii.the limitations and restrictions, if any, to be effective while any shares
of such series are outstanding upon the payment of dividends or the making
of other distributions on, and upon the purchase, redemption or other
acquisition by the corporation of, the common stock or shares of preferred
stock of any other series or any other class of stock of the corporation or
any series of such class;
ix. the conditions or restrictions, if any, to be effective while any shares of
such series are outstanding upon the creation of indebtedness of the
corporation or upon the issuance of any additional stock, including
additional shares of such series or of any other series of the preferred
stock or of any class of stock of the corporation or any series of such
class; and
x. any other powers, designations, preferences and relative, participating,
optional or other special rights, and any qualifications, limitations or
restrictions thereof.
The powers, designations, preferences and relative, participating, optional or
other special rights of each series of preferred stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. The Board of Directors is hereby
expressly authorized from time to time to increase (but not above the total
number of authorized shares of preferred stock) or decrease (but not below the
number of shares thereof then outstanding) the number of shares of stock of any
series of preferred stock designated as any one or more series of preferred
stock.
FIFTH: The name and mailing address of the incorporator is Brad J.
Schwartzberg, 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 DGCL, or (iv) for any
transaction from which the director derived any improper personal benefit. If
the DGCL is amended after the date of the filing of this Certificate of
Incorporation 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 DGCL, 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 the power to make, alter or repeal the
By-Laws of this corporation (subject to any stockholder approvals required in
this Certificate of Incorporation or By-Laws of the corporation) except as may
otherwise be provided in this Certificate of Incorporation or in the By-Laws.
EIGHTH: The affirmative vote of the holders of at least 80% of the issued
and outstanding shares of common stock of the corporation shall be required to
amend, alter or repeal, or adopt any provision inconsistent with, the
requirements of Section 2.2, Section 3.1, Section 3.2, Section 3.3 or the second
paragraph of Section 12.1 of the By-Laws of this corporation.
NINTH: Elections of directors need not be by written ballot, except as may
otherwise be provided in the By-Laws.
TENTH: Any or all of the directors may be removed at any time, with or
without cause, only by an affirmative vote of the holders of at least 80% of the
issued and outstanding shares of common stock of the corporation.
ELEVENTH: 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 DGCL,
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.
TWELFTH: 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 DGCL) 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.
THIRTEENTH: 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 only if a consent in writing
setting forth the action so taken is signed by all the holders of the
corporation's issued and outstanding capital stock entitled to vote thereon.
