BY-LAWS
OF
CINERGY CORP.
Adopted: October 24, 1994
Amended: January 25, 1996
Amended: December 18, 1997
Amended: April 22, 1998
Amended: October 15, 1998
Amended: April 21, 1999
Amended: April 27, 2000
Amended: December 14, 2000
Amended: May 2, 2002
TABLE OF CONTENTS
ARTICLE I
Offices and Headquarters
------------------------
Section 1.1 Offices
1.2 Headquarters
ARTICLE II
Stockholders
------------
Section 2.1 Annual Meeting
2.2 Special Meetings
2.3 Notice of Meetings
2.4 Quorum
2.5 Voting
2.6 Presiding Officer and Secretary
2.7 Proxies
2.8 List of Stockholders
ARTICLE III
Directors
---------
Section 3.1 Number of Directors
3.2 Election and Term of Directors
3.3 Vacancies and Newly Created Directorships
3.4 Resignation
3.5 Meetings
3.6 Quorum and Voting
3.7 Written Consent of Directors in Lieu of a Meeting
3.8 Compensation
3.9 Contracts and Transactions Involving Directors
ARTICLE IV
Committees of the Board of Directors
------------------------------------
Section 4.1 Appointment and Powers
ARTICLE V
Officers, Agents and Employees
------------------------------
Section 5.1 Appointment and Term of Office
5.2 The Chairman of the Board
Section 5.3 Vice-Chairman
5.4 Chief Executive Officer
5.5 The President
5.6 The Vice-Presidents
5.7 The Secretary
5.8 The Treasurer
5.9 The Comptroller
5.10 Resignation, Compensation and Bond
ARTICLE VI
Indemnification
---------------
Section 6.1 Indemnification of Directors, Officers, Employees and Agents
6.2 Advances for Litigation Expenses
6.3 Indemnification Nonexclusive
6.4 Indemnity Insurance
6.5 Definitions
ARTICLE VII
Common Stock
------------
Section 7.1 Certificates
7.2 Transfers of Stock
7.3 Lost, Stolen or Destroyed Certificates
7.4 Stockholder Record Date
7.5 Beneficial Owners
ARTICLE VIII
Seal
----
Section 8.1 Seal
ARTICLE IX
Waiver of Notice
----------------
Section 9.1 Waiver of Notice
ARTICLE X
Fiscal Year
-----------
Section 10.1 Fiscal Year
ARTICLE XI
Contracts, Checks, etc.
-----------------------
Section 11.1 Contracts, Checks, etc
ARTICLE XII
Amendments
----------
Section 12.1 Amendments
ARTICLE XIII
Dividends
---------
Section 13.1 Dividends
BY-LAWS
OF
CINERGY CORP. (THE "CORPORATION")
ARTICLE I
Offices and Headquarters
------------------------
Section 1.1 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 the aforesaid principal office, establish and
maintain an office or offices elsewhere in Delaware, Ohio or Indiana or in such
other states and places as the Board of Directors may from time to time find
necessary or desirable, at which office or offices the books, documents, and
papers of the Corporation may be kept.
Section 1.2 Headquarters. Subject to the sentence next following, the
Corporation's headquarters and executive offices, shall be located in the City
of Cincinnati, County of Hamilton, State of Ohio. The location of the
Corporation's headquarters and executive offices may be changed from the City of
Cincinnati, County of Hamilton, State of Ohio only by the affirmative vote of
80% of the full Board of Directors of the Corporation and not by the vote of any
committee of the Board of Directors. As used in these By-Laws, the term "the
full Board of Directors" shall mean all directors then in office together with
any vacancies, however created. For the avoidance of doubt and as an example
only, if the Board of Directors consists of 17 members and two vacancies exist,
the affirmative vote of 14 of the 15 members of the Corporation's Board of
Directors then in office would be required to authorize a change in location of
the Corporation's headquarters and executive offices. The headquarters and
executive offices of the Corporation's subsidiary, PSI Energy, Inc., shall be
located in the City of Plainfield, Indiana and the headquarters and executive
offices of the Corporation's subsidiary, The Cincinnati Gas & Electric Company,
shall be located in the City of Cincinnati, Ohio.
ARTICLE II
Stockholders
------------
Section 2.1 Annual Meeting. 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 from time to time determine. The annual meeting in each year shall
be held at such hour on said day and at such place within or without the State
of Delaware as may be fixed 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.
In lieu of the foregoing and at the sole discretion of the Board of
Directors, an annual meeting of stockholders of the Corporation for the election
of directors and for the transaction of any other proper business may be held by
means of remote communication (e.g., via the Internet) to the fullest extent
permitted by Section 211 of the Delaware General Corporation Law.
No business may be transacted at an annual meeting of stockholders, other
than business that is either: (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof); (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof); or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation: (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section
2.1 and on the record date for the determination of stockholders entitled to
vote at such annual meeting; and (ii) who complies with the notice procedures
set forth in this Section 2.1.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than ninety (90) calendar days nor more than one hundred twenty (120)
calendar days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) calendar days before
or after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth (10th)
calendar day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder 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 such stockholder; (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder; (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business; and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
Notwithstanding anything to the contrary in the By-Laws, no business shall
be conducted at the annual meeting of stockholders except business brought
before the annual meeting in accordance with the procedures set forth in this
Section 2.1; provided, however, that once business has been properly brought
before the annual meeting in accordance with such procedures, nothing in this
Section 2.1 shall be deemed to preclude discussion by any stockholder of any
such business. If the presiding officer of an annual meeting determines that
business was not properly brought before the annual meeting in accordance with
the foregoing procedures, the presiding officer shall declare to the meeting
that the business was not properly brought before the meeting and such business
shall not be transacted.
Section 2.2 Special Meetings. A special meeting of the stockholders 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 or the President or by a
majority of the members of the Board of Directors then in office, acting with or
without a meeting, or by the persons who hold 50% of all shares outstanding and
entitled to vote thereat upon notice in writing, stating the time, place and
purpose of the special meeting. The business transacted at the special meeting
shall be confined to the purposes and objects stated in the call.
Section 2.3 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, if any, date and hour of the
meeting, the means of remote communication, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called.
In lieu of and/or in addition to the foregoing, notice of any meeting of
the stockholders of the Corporation may be given via electronic transmission, to
the fullest extent permitted by Section 232 of the Delaware General Corporation
Law. To be valid, such electronic transmission notice must be in a form to which
the stockholder has consented. Any stockholder can revoke consent to receive
notice by a form of electronic transmission by written notice to the
Corporation. Such consent shall be deemed revoked after two consecutive
electronic transmissions by the Corporation are returned as undeliverable;
provided, however, the inadvertent failure to treat any such undeliverable
notices as a revocation shall not invalidate any meeting or other action.
"Electronic transmission" shall mean any form of communication, not directly
involving the physical transmission of paper, that creates a record and that may
be retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
Unless otherwise provided by law, and except as to any stockholder duly
waiving notice, the written notice of any meeting shall be given personally, by
mail, or by a form of electronic transmission consented to by the stockholder to
whom notice is given, not less than 10 days nor more than 60 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. If by a form of electronic transmission, notice
shall be deemed given when transmitted to the stockholder in accordance with the
provisions set forth herein; provided, however, that if the electronic
transmission notice is posted on an electronic network (e.g., a website or
chatroom), notice shall be deemed given upon the later of (A) such posting and
(B) the giving of separate notice of the posting to the stockholder.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time, place, if any, thereof, and the
means of remote communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such adjourned meeting 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 30 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 2.4 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, in person 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 2.3 of these By-Laws, notice need not be given of the
adjourned meeting.
Section 2.5 Voting. Whenever directors are to be elected at a meeting, they
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote thereon. 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 the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and 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 (1)
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 2.6 Presiding Officer and Secretary. At every meeting of
stockholders, and where the offices of the Chairman of the Board and the Chief
Executive Officer are held by different individuals, the Chief Executive
Officer, or, in his or her absence, the Chairman of the Board, or, in his or her
absence, 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. The
presiding officer shall have the authority to make all rules regarding the
conduct of any meeting including, but not limited to, setting the agenda and/or
determining the proper order of business, making arrangements with respect to
matters of safety and security, determining reserved seating arrangements for
certain stockholders and/or others in attendance, establishing guidelines or
procedures for participation by stockholders and/or others in attendance, and
making any determination with respect to possible adjournment and/or
postponement.
Section 2.7 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. A stockholder may
authorize another person or persons to act for him as proxy by transmitting or
authorizing the transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission if such transmission is submitted with information from which it
may be determined that the transmission was authorized by the stockholder.
Section 2.8 List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 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, for a period of at least 10 days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (ii) during ordinary business hours, at the principal place of business of
the Corporation. If the meeting is to be held at a place, 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.
If any meeting of the Corporation's stockholders is to be held solely by
means of remote communications (e.g., the Internet), the list must be made
available to the stockholders during the entire meeting on a reasonably
accessible electronic network. The notice of meeting must provide information by
which the stockholder can gain access to the electronic list.
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.
ARTICLE III
Directors
---------
Section 3.1 Number of Directors. The Board of Directors shall consist of a
number of directors not less than seven (7) and not more than twenty-three (23)
as determined by a vote of not less than 75% of the full Board of Directors
("Supermajority Vote"). Any such determination made by the Board of Directors
shall continue in effect unless and until changed by the Board of Directors by
Supermajority Vote, but no such change shall affect the term of any director
then in office.
Section 3.2 Election and Term of Directors. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
directors. Except as may be required by applicable law, no person who is, at the
time of nomination, 70 years of age or older shall be eligible for election as a
director. Nominations of persons as candidates for election as directors of the
Corporation may be made at a meeting of stockholders (i) by or at the direction
of the Board of Directors acting by Supermajority Vote (or by a unanimous vote
of the remaining directors if a Supermajority Vote is not obtainable because the
number of vacancies on the Board of Directors); or (ii) by any stockholder of
the Corporation entitled to vote for the election of directors at such meeting
who complies with the notice procedures set forth herein. Any nomination other
than those governed by clause (i) of the preceding sentence shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal office of the Corporation in the State of Ohio not less than 50
days prior to the meeting; provided, however, that if less than 60 days' notice
or prior public disclosure of the date of the meeting is given to stockholders
or made public, to be timely notice by a stockholder must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure was
made. Such stockholder's notice to the Secretary shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election as director: (i)
the name, age, business address, and residence address of such person; (ii) the
principal occupation or employment of such person; (iii) the class and number of
any shares of capital stock of the Corporation that are beneficially owned by
such person; and (iv) any other information relating to such person that is
required to be disclosed in solicitations for proxies for the election of
directors pursuant to any then existing rules or regulations promulgated under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving notice: (i) the name and record address of such stockholder; (ii) the
class and number of shares of capital stock of the Corporation that are
beneficially owned by such stockholder, and (iii) the period of time such
stockholder has held such shares. 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 a
director. No person otherwise eligible for election as a director shall be
eligible for election as a director unless nominated as set forth herein.
Commencing on October 24, 1994 (the "Classification Date") of the Board of
Directors of the Corporation, the terms of office of the Board of Directors
shall be divided into three (3) classes, Class I, Class II and Class III, as
determined by the Board of Directors. All classes shall be as nearly equal in
number as possible.
The terms of office of directors classified shall be as follows: (1) that
of Class I shall expire at the annual meeting of stockholders that occurs within
the first year after the Classification Date, (2) that of Class II shall expire
at the annual meeting of stockholders that occurs within the second year after
the Classification Date, and (3) that of Class III shall expire at the annual
meeting of stockholders that occurs within the third year after the
Classification Date. At each annual meeting of stockholders after the
Classification Date, the successors to directors whose terms shall expire shall
be elected to serve from the time of election and qualification until the third
annual meeting following election and until a successor shall have been elected
and qualified or until his earlier resignation, removal from office or death. As
being under 70 years of age constitutes a continuing qualification for service
on the Board of Directors, any director who reaches the age of 70 years while in
office shall, except as limited by applicable law, promptly resign from the
Corporation's Board of Directors.
Section 3.3 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. Except as
otherwise provided by law, and notwithstanding the provision of Section 3.6, the
remaining directors, whether or not constituting a majority of the whole
authorized number of directors, may, by not less than a Supermajority Vote (or
by a unanimous vote of the remaining directors if a Supermajority Vote is not
obtainable because of the number of vacancies on the Board of Directors) fill
any vacancy in the Board, however arising, for the unexpired term thereof. Any
person elected to fill a vacancy in the Board shall hold office until the
expiration of the term of office for the class to which he or she is elected and
until a successor is elected and qualified or until his or her earlier
resignation, removal from office or death.
Section 3.4 Resignation. Any director may resign at any time upon notice
given in writing or by electronic transmission 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 3.5 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 other 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 within 10 days 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 such
time and place as shall be specified by the Board, and no notice thereof need be
given. 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,
the Chief Executive Officer, the President or by the written request of a
majority of the members of the Board of Directors, 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 in writing, through the mail, or personally served or by
telephone, telecopy, telegram, cablegram or radiogram, or via any form of
electronic transmission, in each such case within such time frame as the person
calling the meeting shall deem appropriate, and such notice shall be deemed to
be given at the time when the same shall be transmitted.
Section 3.6 Quorum and Voting. A majority of the full Board 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 (including, without limitation, where any
Supermajority Vote or any other vote in excess of a majority is required), 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 3.7 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 or by
electronic transmission, and the writing or writings or electronic transmissions
are filed with the minutes of proceedings of the Board or committee.
Section 3.8 Compensation. Each director of the Corporation (other than
directors who are salaried officers of the Corporation or any of its
subsidiaries) shall be entitled to receive as compensation for services such
reasonable compensation, which may include pension, disability and death
benefits, as may be determined from time to time by the Board of Directors.
Reasonable compensation may also be paid to any person other than a director
officially called to attend any such meeting.
Section 3.9 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 IV
Committees of the Board of Directors
------------------------------------
Section 4.1 Appointment and Powers. The Board of Directors may, by
resolution adopted by a majority of the Board, designate from time to time
(subject to Article V hereof) no less than three (3) and no more than six (6) of
their number to constitute an Executive Committee, and may delegate to such
committee power to authorize the seal of the Corporation to be affixed to all
papers which may require it and 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 to the fullest extent permitted by
Section 141(c)(2) of the Delaware General Corporation Law; provided, however,
that the Executive Committee shall not have the power or authority to take any
action for which a Supermajority Vote or other vote in excess of a majority of
the Board of Directors is required. Each member of the Executive Committee shall
continue to be a member thereof only during the pleasure of a majority of the
full Board of Directors.
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.
The Board of Directors may also appoint a Finance Committee, a Corporate
Governance Committee, an Audit Committee, a Public Policy Committee and a
Compensation Committee and 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 (subject to the provisions of these
By-Laws); provided, however, that any compensation or benefits to be paid to an
executive officer who is also a director must be approved by the Board of
Directors. The members of such committees shall be entitled to receive such fees
as the Board may determine.
The Board of Directors shall not amend, modify, vary or waive any of the
terms of the Amended and Restated Agreement and Plan of Reorganization by and
among The Cincinnati Gas & Electric Company, PSI Resources, Inc., PSI Energy,
Inc., the Corporation, Cinergy Corp., an Ohio corporation, and Cinergy Sub, Inc.
dated as of December 11, 1992, as amended and restated as of July 2, 1993 and as
of September 10, 1993 and as further amended as of June 20, 1994, as of July 26,
1994 and as of September 30, 1994 (the "Merger Agreement") other than by a
Supermajority Vote of the Board of Directors.
ARTICLE V
Officers, Agents and Employees
------------------------------
Section 5.1 Appointment and Term of Office. The executive officers of the
Corporation, shall consist of a Chairman of the Board, a Vice-Chairman, a Chief
Executive Officer, a President, one or more Vice-Presidents, a Secretary, a
Treasurer and a Comptroller, all of whom shall be elected by the Board of
Directors by a Supermajority Vote, and shall hold office for one (1) year and
until their successors are chosen and qualified. 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. Any vacancy occurring in the office of
the Chairman, Chief Executive Officer or President shall be filed by
Supermajority Vote of the Board of Directors. The Chairman, Chief Executive
Officer or President shall be subject to removal without cause only by
Supermajority Vote of the Board of Directors at a special meeting of the Board
of Directors called for that purpose.
The Board of Directors may appoint, and may delegate power to appoint, such
other non-executive 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 5.2 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
stockholders 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
Supermajority Vote of 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 the President, as may be requested from
time-to-time by the President. The Chairman shall be a member of the Executive
Committee.
Section 5.3 Vice-Chairman. The Vice-Chairman of the Board 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 stockholders 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 Supermajority Vote of the Board of
Directors. The Vice-Chairman shall be a member of the Executive Committee and
may be a member of such other committees of the Board as it shall from time to
time deem appropriate.
Section 5.4 Chief Executive Officer. The Chief Executive Officer shall be a
director and shall preside at all meetings of the stockholders, and, in the
absence or inability to act of the Chairman of the Board and the Vice-Chairman,
meetings of the Board of Directors, and shall submit a report of the operations
of the Corporation for the fiscal year to the stockholders 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.
Where the offices of President and Chief Executive Officer are held by different
individuals, the President will report directly to the Chief Executive Officer.
Section 5.5 The President. The President shall be the chief operating
officer of the Corporation. The President 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 President of a
corporation. All corporate officers and functions except those reporting to the
Chairman of the Board or the Chief Executive Officer shall report directly to
the President.
Section 5.6 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
President or Board of Directors or Executive Committee shall exercise the powers
and duties of the President.
Section 5.7 The Secretary. The Secretary shall attend all meetings of the
Board of Directors, of the Executive Committee and any other committee of the
Board of Directors 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, 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 the 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, the Chairman, the Chief Executive Officer, or the President.
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 President, the Secretary, or the Board of Directors.
Section 5.8 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, the Chairman, the Chief Executive Officer, or the President, taking
proper vouchers therefor, and shall render to the President, the Chief Executive
Officer, the Chairman, and/or directors at all regular meetings of the Board, or
whenever they may require it, and to the annual meeting of the stockholders, an
account of all his or her transactions as Treasurer and of the financial
condition of the Corporation.
The Treasurer shall also perform such other duties as the Board of
Directors, the Chairman, the Chief Executive Officer, or the President 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.
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
President, the Treasurer, or the Board of Directors.
Section 5.9 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, the Chairman, the Chief
Executive Officer, the President, or a Vice President.
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 President, the Comptroller, or the Board of Directors.
Section 5.10 Resignation, Compensation and Bond. Any resignation from
office by any officer of the Corporation also shall be deemed, to the extent
applicable, to be a resignation from any similar office held by such resigning
officer at any affiliate or subsidiary of the Corporation, unless otherwise
expressly provided for within the resigning officer's letter of resignation. The
compensation of the officers of the Corporation shall be fixed by the
Compensation Committee of the Board of Directors or, in lieu of the Compensation
Committee, 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.
ARTICLE VI
Indemnification
---------------
Section 6.1 Indemnification of Directors, Officers, Employees and Agents.
(A) 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 any action or suit by or
in the right of the Corporation) 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
(specifically including employee benefit plans), shall be indemnified by the
Corporation, if, as and to the extent authorized by applicable law, against
expenses (specifically including attorney's fees), judgments, fines
(specifically including any excise taxes assessed on a person with respect to an
employee benefit plan) 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, if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her 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 or she
reasonably believed to be in and not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, he or she
had no reasonable cause to believe his or her conduct was unlawful.
(B) The Corporation shall, to the extent not prohibited by applicable law,
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 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, trustee, officer, employee, or agent of another corporation,
domestic or foreign, non-profit or for-profit, partnership, joint venture, trust
or other enterprise (specifically including employee benefit plans), against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Corporation; provided 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.
(C) To the extent that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in the paragraphs (A) or (B) of this Section, or in
defense of any claim, issue, or matter therein, he or she shall be indemnified
against expenses, specifically including attorneys' fees, actually and
reasonably incurred by him or her in connection therewith.
(D) Any indemnification under Paragraphs (A) and (B) of this Section,
unless ordered by a court, shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in such Paragraphs (A) and (B).
Such determination shall be made as follows: (1) by a majority vote of the Board
of Directors, even if less than a quorum, consisting of directors who were not
parties to such action, suit, or proceeding; (2) by a committee of such
directors designated by a majority vote of such directors, even if less than a
quorum; (3) if the quorum described in (D)(1) of this Section is not obtainable
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (4) by the stockholders.
Section 6.2 Advances for Litigation Expenses. Expenses (including
attorneys' fees) incurred by a director, officer, employee, or agent of the
Corporation in defending any civil, criminal, administrative or investigative
action, suit or proceeding, shall be paid by the Corporation as they are
incurred in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director, officer,
employee, or agent: (1) 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 VI; and (2) to cooperate reasonably with the
Corporation concerning the action, suit or proceeding.
Section 6.3 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 the Certificate of
Incorporation, these By-Laws, any agreement, any 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, trustee, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section 6.4 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 or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under this Article. Insurance may be purchased from or maintained with a person
in which the Corporation has a financial interest.
Section 6.5 Definitions. For purposes of this Article: (1) a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
conclusively be deemed to have acted in a manner "not opposed to the best
interests of the Corporation"; (2) 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; (3) the term "another enterprise" as used in this Article VI 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; and (4)
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger, which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees, and agents. ARTICLE VII Common Stock
Section 7.1 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 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 7.2 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 of Directors or the Finance Committee may appoint one (1)
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 7.3 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 7.4 Stockholder Record Date. (A) 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, the Board of Directors may fix a record
date, which record date shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting.
If no record date is fixed by the Board of Directors, 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 day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held.
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;
providing, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
(B) In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in this State, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolutions taking such
prior action.
(C) In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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 a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 7.5 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 VIII
Seal
----
Section 8.1 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 IX
Waiver of Notice
----------------
Section 9.1 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, or a
waiver by electronic transmission 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 or any waiver by electronic transmission.
ARTICLE X
Fiscal Year
-----------
Section 10.1 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 each
year.
ARTICLE XI
Contracts, Checks, etc.
-----------------------
Section 11.1 Contracts, Checks, etc. The Board of Directors or the Finance
Committee may by resolution adopted at any meeting designate officers of the
Corporation who may in the name of the Corporation execute contracts, checks,
drafts, and orders for the payment of money in its behalf and, in the discretion
of the Board of Directors or the Finance Committee, such officers may be so
authorized to sign such contracts or checks singly without the necessity of
counter-signature.
ARTICLE XII
Amendments
----------
Section 12.1 Amendments. Except as set forth below, these By-Laws may be
amended or repealed by the Board of Directors or by the affirmative vote of the
holders of a majority of the issued and outstanding common stock of the
Corporation, or by the unanimous written consent of the holders of the issued
and outstanding common stock of the Corporation.
Notwithstanding the foregoing paragraph, 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 this paragraph of Section 12.1 of these By-Laws, in
addition to any requirements of law and any provisions of the Certificate of
Incorporation, any By-law, or any resolution of the Board of Directors adopted
pursuant to the Certificate of Incorporation (and notwithstanding that a lesser
percentage may be specified by law, the Certificate of Incorporation, these
By-Laws, such resolution, or otherwise).
Notwithstanding any of the foregoing, the affirmative vote of a majority of
the holders of the issued and outstanding common stock of the Corporation shall
be required to amend, alter or repeal, or adopt any provision inconsistent with
(i) any provision of these By-Laws requiring a Supermajority Vote of the Board
of Directors (including this provision of Section 12.1) or (ii) the
responsibilities of the Chief Executive Officer or President as set forth in
Section 5.4 or Section 5.5, and the Board of Directors shall not recommend any
such amendment to such provisions to the stockholders unless the proposed
amendment is approved by the Board of Directors acting by Supermajority Vote.
ARTICLE XIII
Dividends
---------
Section 13.1 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.
