**EXHIBIT3.1**

 

 

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       |
| Amended: |   | July 23, 2003     |

 

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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 |

 

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| 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 Controller                                                |
|                 | 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.                                                  |

 

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| **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 |

 

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BY-LAWS

 

OF

 

CINERGY CORP. (THE“CORPORATION”)

 

 

**ARTICLEI**

 

**Offices****andHeadquarters**

 

Section 1.1  Offices.  The location of the Corporation’s principal office shall be inthe City of Cincinnati, County of Hamilton, State of Ohio.  The Corporation may, in addition to theaforesaid principal office, establish and maintain an office or officeselsewhere in Delaware, Ohio or Indiana or in such other states and places asthe Board of Directors may from time to time find necessary or desirable, atwhich office or offices the books, documents, and papers of the Corporation maybe kept.

 

Section 1.2  Headquarters.  Subject to the sentence next following, theCorporation’s headquarters and executive offices, shall be located in the Cityof Cincinnati, County of Hamilton, State of Ohio.  The location of the Corporation’s headquarters and executiveoffices may be changed from the City of Cincinnati, County of Hamilton, Stateof Ohio only by the affirmative vote of 80% of the full Board of Directors ofthe Corporation and not by the vote of any committee of the Board of Directors.  As used in these By-Laws, the term “the fullBoard of Directors” shall mean all directors then in office together with anyvacancies, 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, theaffirmative vote of 14 of the 15 members of the Corporation’s Board ofDirectors then in office would be required to authorize a change in location ofthe Corporation’s headquarters and executive offices.  The headquarters and executive offices of the Corporation’s

 

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subsidiary, PSI Energy, Inc., shall be located in the City ofPlainfield, Indiana and the headquarters and executive offices of theCorporation’s subsidiary, The Cincinnati Gas & Electric Company, shall belocated in the City of Cincinnati, Ohio.

 

**ARTICLEII**

 

**Stockholders**

 

Section 2.1  Annual Meeting.  An annual meeting of stockholders of theCorporation for the election of directors and for the transaction of any otherproper business shall be held at such time and date in each year as the Boardof Directors may from time to time determine. The annual meeting in each year shall be held at such hour on said dayand at such place within or without the State of Delaware as may be fixed bythe Board of Directors, or if not so fixed, at the principal business office ofthe Corporation in the City of Cincinnati, County of Hamilton, State of Ohio.

 

In lieu of theforegoing and at the sole discretion of the Board of Directors, an annualmeeting of stockholders of the Corporation for the election of directors andfor the transaction of any other proper business may be held by means of remotecommunication (e.g., via the Internet) to the fullest extent permitted bySection 211 of the Delaware General Corporation Law.

 

No business may betransacted at an annual meeting of stockholders, other than business that iseither: (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 authorizedcommittee thereof); (b) otherwise properly brought before the annual meeting byor at the direction of the Board of Directors (or any duly authorized committeethereof); or (c) otherwise properly brought before the annual meeting by anystockholder of the Corporation: (i) who is a stockholder of record on the 

 

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date of the giving of the notice provided for in this Section 2.1 andon the record date for the determination of stockholders entitled to vote atsuch annual meeting; and (ii) who complies with the notice procedures set forthin this Section 2.1.

 

In addition to anyother applicable requirements, for business to be properly brought before anannual meeting by a stockholder, such stockholder must have given timely noticethereof in proper written form to the Secretary of the Corporation.

 

To be timely, astockholder’s notice to the Secretary must be delivered to or mailed andreceived at the principal executive offices of the Corporation not less thanninety (90) calendar days nor more than one hundred twenty (120) calendar daysprior to the anniversary date of the immediately preceding annual meeting ofstockholders; provided, however, that in the event that the annual meeting iscalled for a date that is not within thirty (30) calendar days before or aftersuch anniversary date, notice by the stockholder in order to be timely must beso 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 annualmeeting was mailed or such public disclosure of the date of the annual meetingwas made, whichever first occurs.

 

To be in properwritten form, a stockholder’s notice to the Secretary must set forth as to eachmatter such stockholder proposes to bring before the annual meeting:  (i) a brief description of the businessdesired to be brought before the annual meeting and the reasons for conductingsuch business at the annual meeting; (ii) the name and record address of suchstockholder; (iii) the class or series and number of shares of capital stock ofthe Corporation which are owned beneficially or of record by such stockholder;(iv) a description of all arrangements or understandings between suchstockholder and any other person or persons (including their names)

 

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in connection with the proposal of such business by such stockholderand any material interest of such stockholder in such business; and (v) arepresentation that such stockholder intends to appear in person or by proxy atthe annual meeting to bring such business before the meeting.

 

Notwithstandinganything to the contrary in the By-Laws, no business shall be conducted at theannual meeting of stockholders except business brought before the annualmeeting in accordance with the procedures set forth in this Section 2.1;provided, however, that once business has been properly brought before theannual meeting in accordance with such procedures, nothing in this Section 2.1shall be deemed to preclude discussion by any stockholder of any suchbusiness.  If the presiding officer ofan annual meeting determines that business was not properly brought before theannual meeting in accordance with the foregoing procedures, the presidingofficer shall declare to the meeting that the business was not properly broughtbefore the meeting and such business shall not be transacted.

 

Section 2.2  Special Meetings.  A special meeting of the stockholders of theCorporation entitled to vote on any business to be considered at any suchmeeting may be called by the Chairman of the Board or the President or by amajority of the members of the Board of Directors then in office, acting withor without a meeting, or by the persons who hold 50% of all shares outstandingand entitled to vote thereat upon notice in writing, stating the time, placeand purpose of the special meeting.  The business transacted at the special meeting shall be confined to thepurposes and objects stated in the call.

 

Section 2.3  Notice of Meetings.  Whenever stockholders are required orpermitted to take any action at a meeting, unless notice is waived in writingby all stockholders entitled to vote at the meeting, a written notice of themeeting shall be given which shall state the place, if

 

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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 inperson and vote at such meeting, and, in the case of a special meeting, thepurpose or purposes for which the meeting is called.

 

In lieu of and/orin addition to the foregoing, notice of any meeting of the stockholders of theCorporation may be given via electronic transmission, to the fullest extentpermitted by Section 232 of the Delaware General Corporation Law.  To be valid, such electronic transmissionnotice must be in a form to which the stockholder has consented.  Any stockholder can revoke consent toreceive notice by a form of electronic transmission by written notice to theCorporation.  Such consent shall bedeemed revoked after two consecutive electronic transmissions by theCorporation are returned as undeliverable; provided, however, the inadvertentfailure to treat any such undeliverable notices as a revocation shall notinvalidate any meeting or other action. “Electronic transmission” shall meanany form of communication, not directly involving the physical transmission ofpaper, that creates a record and that may be retained, retrieved, and reviewedby a recipient thereof, and that may be directly reproduced in paper form bysuch a recipient through an automated process.

 

Unless otherwiseprovided by law, and except as to any stockholder duly waiving notice, thewritten notice of any meeting shall be given personally, by mail, or by a formof electronic transmission consented to by the stockholder to whom notice isgiven, not less than 10 days nor more than 60 days before the date of themeeting to each stockholder entitled to vote at such meeting.  If mailed, notice shall be deemed given whendeposited in the mail, postage prepaid, directed to the stockholder at his orher address as it appears on the records of the Corporation. *** ***If by a form of electronic transmission, noticeshall be deemed given when

 

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transmitted to the stockholder in accordance with the provisions setforth herein; provided, however, that if the electronic transmission notice isposted on an electronic network (e.g., a website or chatroom), notice shall bedeemed given upon the later of (A) such posting and (B) the giving of******separate******notice of theposting to the stockholder.

 

When a meeting isadjourned to another time or place, notice need not be given of the adjournedmeeting if the time, place, if any, thereof, and the means of remotecommunications, if any, by which stockholders and proxy holders may be deemedto be present in person and vote at such adjourned meeting are announced at themeeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business whichmight have been transacted at the original meeting.  If, however, the adjournment is for more than 30 days, or ifafter the adjournment a new record date is fixed for the adjourned meeting, anotice of the adjourned meeting shall be given to each stockholder of recordentitled to vote at the meeting.

 

Section 2.4  Quorum.  Except as otherwise provided by law or by the Certificate ofIncorporation or by these By-Laws in respect of the vote required for aspecified action, at any meeting of stockholders the holders of a majority ofthe outstanding stock entitled to vote thereat, either present, in person orrepresented by proxy, shall constitute a quorum for the transaction of anybusiness, but the stockholders present, although less than a quorum, mayadjourn the meeting to another time or place and, except as provided in thelast paragraph of Section 2.3 of these By-Laws, notice need not be given of theadjourned meeting.

 

Section 2.5  Voting.  Whenever directors are to be elected at a meeting, they shall beelected by a plurality of the votes of the shares present in person orrepresented by proxy at the meeting and entitled to vote thereon.  Whenever any corporate action, other thanthe election of

 

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directors, is to be taken by vote of stockholders at a meeting, itshall, except as otherwise required by law or by the Certificate ofIncorporation or by these By-Laws, be authorized by the affirmative vote of themajority of shares present in person or represented by proxy at the meeting andentitled to vote thereon.

 

Except asotherwise provided by law, or by the Certificate of Incorporation, each holderof record of stock of the Corporation entitled to vote on any matter at anymeeting of stockholders shall be entitled to one (1) vote for each share ofsuch stock standing in the name of such holder on the stock ledger of theCorporation on the record date for the determination of the stockholdersentitled to vote at the meeting.

 

Upon the demand ofany stockholder entitled to vote, the vote for directors or the vote on anyother matter at a meeting shall be by written ballot, but otherwise the methodof voting and the manner in which votes are counted shall be discretionary withthe presiding officer at the meeting.

 

Section 2.6  Presiding Officer and Secretary.  At every meeting of stockholders, and wherethe offices of the Chairman of the Board and the Chief Executive Officer areheld by different individuals, the Chief Executive Officer, or, in his or herabsence, the Chairman of the Board, or, in his or her absence, the appointee ofthe meeting, shall preside.   TheSecretary, or, in his or her absence, an Assistant Secretary, or if none bepresent, the appointee of the presiding officer of the meeting, shall act assecretary of the meeting.*** ***The presidingofficer shall have the authority to make all rules regarding the conduct of anymeeting including, but not limited to, setting the agenda and/or determiningthe proper order of business, making arrangements with respect to matters ofsafety and security, determining reserved seating arrangements for certain

 

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stockholders and/or others in attendance, establishing guidelines orprocedures for participation by******stockholders and/or others in******attendance, and making any determinationwith respect to possible adjournment and/or postponement.

 

Section 2.7  Proxies.  Each stockholder entitled to vote at a meeting of stockholders orto express consent or dissent to corporate action in writing without a meetingmay authorize another person or persons to act for him or her by proxy, but nosuch proxy shall be voted or acted upon after three years from its date, unlessthe proxy provides for a longer period. Every proxy shall be signed by the stockholder or by his duly authorizedattorney.  A stockholder may authorizeanother person or persons to act for him as proxy by transmitting orauthorizing the transmission of a telegram, cablegram, or other means ofelectronic transmission to the person who will be the holder of the proxy or toa proxy solicitation firm, proxy support service organization or like agentduly authorized by the person who will be the holder of the proxy to receivesuch transmission if such transmission is submitted with information from whichit may be determined that the transmission was authorized by the stockholder.

 

Section 2.8  List of Stockholders.  The officer who has charge of the stockledger of the Corporation shall prepare and make, at least 10 days before everymeeting of stockholders, a complete list of the stockholders entitled to voteat the meeting, arranged in alphabetical order, and showing the address of eachstockholder and the number of shares registered in the name of eachstockholder.  Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting, fora period of at least 10 days prior to the meeting:  (i) on a reasonably accessible electronic network, provided thatthe information required to gain access to such list is provided with thenotice of the meeting, or (ii) during ordinary business hours, at the principal

 

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place of business of the Corporation. If the meeting is to be held at a place, the list shall also be producedand 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 ofthe Corporation’s stockholders is to be held solely by means of remotecommunications (e.g., the Internet), the list must be made available to thestockholders during the entire meeting on a reasonably accessible electronicnetwork.  The notice of meeting mustprovide information by which the stockholder can gain access to the electroniclist.

 

The stock ledgershall be the only evidence as to who are the stockholders entitled to examinethe stock ledger, the list required by this Section or the books of theCorporation, or to vote in person or by proxy at any meeting of stockholders.

 

**ARTICLEIII**

 

**Directors**

 

Section 3.1  Number of Directors.  The Board of Directors shall consist of anumber of directors not less than seven (7) and not more than twenty-three (23)as determined  by a vote of not lessthan 75% of the full Board of Directors (“Supermajority Vote”).  Any such determination made by the Board ofDirectors shall continue in effect unless and until changed by the Board ofDirectors by Supermajority Vote, but no such change shall affect the term ofany director then in office.

 

Section 3.2  Election and Term of Directors.  Only persons who are nominated in accordancewith 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

 

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shall be eligible for election as a director.  Nominations of persons as candidates for election as directors ofthe Corporation may be made at a meeting of stockholders (i) by or at thedirection of the Board of Directors acting by Supermajority Vote (or by aunanimous vote of the remaining directors if a Supermajority Vote is notobtainable because the number of vacancies on the Board of Directors); or (ii)by any stockholder of the Corporation entitled to vote for the election ofdirectors at such meeting who complies with the notice procedures set forthherein. Any nomination other than those governed by clause (i) of the precedingsentence shall be made pursuant to timely notice in writing to the Secretary ofthe Corporation.  To be timely, astockholder’s notice shall be delivered to or mailed and received at theprincipal office of the Corporation in the State of Ohio not less than 50 daysprior to the meeting; provided, however, that if less than 60 days’ notice orprior public disclosure of the date of the meeting is given to stockholders ormade public, to be timely notice by a stockholder must be so received not laterthan the close of business on the tenth day following the day on which suchnotice of the date of the meeting was mailed or such public disclosure wasmade.  Such stockholder’s notice to theSecretary shall set forth: (a) as to each person whom the stockholder proposesto nominate for election as director: (i) the name, age, business address, andresidence address of such person; (ii) the principal occupation or employmentof such person; (iii) the class and number of any shares of capital stock ofthe Corporation that are beneficially owned by such person; and (iv) any otherinformation relating to such person that is required to be disclosed insolicitations for proxies for the election of directors pursuant to any thenexisting rules or regulations promulgated under the Securities Exchange Act of1934, as amended; and (b) as to the stockholder giving notice: (i) the name andrecord address of such stockholder; (ii) the class and number of shares ofcapital stock of

 

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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 proposednominee to furnish such other information as may reasonably be required by theCorporation to determine the eligibility of such proposed nominee to serve as adirector.  No person otherwise eligiblefor election as a director shall be eligible for election as a director unless nominatedas set forth herein.

 

Commencing onOctober 24, 1994 (the “Classification Date”) of the Board of Directors of theCorporation, the terms of office of the Board of Directors shall be dividedinto three (3) classes, Class I, Class II and Class III, as determined by theBoard of Directors.  All classes shallbe as nearly equal in number as possible.

 

The terms ofoffice of directors classified shall be as follows: (1) that of Class I shallexpire at the annual meeting of stockholders that occurs within the first yearafter the Classification Date, (2) that of Class II shall expire at the annualmeeting of stockholders that occurs within the second year after theClassification Date, and (3) that of Class III shall expire at the annualmeeting of stockholders that occurs within the third year after theClassification Date. At each annual meeting of stockholders after theClassification Date, the successors to directors whose terms shall expire shallbe elected to serve from the time of election and qualification until the thirdannual meeting following election and until a successor shall have been electedand qualified or until his earlier resignation, removal from office ordeath.  As being under 70 years of ageconstitutes a continuing qualification for service on the Board of Directors,any director who reaches the age of 70 years while in office shall, except aslimited by applicable law, promptly resign from the Corporation’s Board ofDirectors.

 

Section 3.3  Vacancies and Newly Created Directorships.Vacancies and newly

 

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created directorships resulting from any increase in the authorizednumber of directors may be filled by election at a meeting ofstockholders.  Except as otherwiseprovided by law, and notwithstanding the provision of Section 3.6, theremaining directors, whether or not constituting a majority of the wholeauthorized number of directors, may, by not less than a Supermajority Vote (orby a unanimous vote of the remaining directors if a Supermajority Vote is notobtainable because of the number of vacancies on the Board of Directors) fillany vacancy in the Board, however arising, for the unexpired term thereof.  Any person elected to fill a vacancy in theBoard shall hold office until the expiration of the term of office for theclass to which he or she is elected and until a successor is elected andqualified or until his or her earlier resignation, removal from office ordeath.

 

Section 3.4  Resignation.  Any director may resign at any time uponnotice given in writing or by electronic transmission to the Corporation.   Any such resignation shall take effect atthe time specified therein or, if the time be not specified, upon receiptthereof, and the acceptance of such resignation, unless required by the termsthereof, shall not be necessary to make such resignation effective.

 

Section 3.5  Meetings.  Meetings of the Board of Directors, regular or special, may beheld at any place within or without the State of Delaware.  Members of the Board of Directors, or of anycommittee designated by the Board, may participate in a meeting of such Boardor committee by means of conference telephone or other communications equipmentby means of which all persons participating in the meeting can hear each other,and participation in a meeting by such means shall constitute presence inperson at such meeting.  An annualmeeting of the Board of Directors shall be held within 10 days after eachannual election of directors.  If such

 

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election occurs at an annual meeting of stockholders, the annualmeeting of the Board of Directors shall be held at such time and place as shallbe specified by the Board, and no notice thereof need be given.  The Board of Directors may fix times andplaces for regular meetings of the Board and no notice of such meetings need begiven.  A special meeting of the Boardof Directors shall be held whenever called by the Chairman of the Board, theChief Executive Officer, the President or by the written request of a majorityof the members of the Board of Directors, at such time and place as shall bespecified in the notice or waiver thereof. Notice of each special meeting shall be given by the Secretary or by aperson calling the meeting to each director in writing, through the mail, orpersonally served or by telephone, telecopy, telegram, cablegram or radiogram,or via any form of electronic transmission, in each such case within such timeframe as the person calling the meeting shall deem appropriate, and such noticeshall 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 Directorsshall constitute a quorum for the transaction of business, but, if there beless than a quorum at any meeting of the Board of Directors, a majority of thedirectors present may adjourn the meeting from time to time, and no furthernotice thereof need be given other than announcement at the meeting which shallbe so adjourned.  Except as otherwiseprovided by law, by the Certificate of Incorporation, or by these By-Laws(including, without limitation, where any Supermajority Vote or any other votein excess of a majority is required), the vote of a majority of the directorspresent at a meeting at which a quorum is present shall be the act of the Boardof Directors.

 

Section 3.7  Written Consent of Directors in Lieu of aMeeting.  Any action required orpermitted to be taken at any meeting of the Board of Directors or of anycommittee

 

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thereof may be taken without a meeting if all members of the Board orof such committee, as the case may be, consent thereto in writing or byelectronic transmission, and the writing or writings or electronictransmissions are filed with the minutes of proceedings of the Board orcommittee.

 

Section 3.8  Compensation.  Each director of the Corporation (other thandirectors who are salaried officers of the Corporation or any of its subsidiaries)shall be entitled to receive as compensation for services such reasonablecompensation, which may include pension, disability and death benefits, as maybe determined from time to time by the Board of Directors.  Reasonable compensation may also be paid toany person other than a director officially called to attend any such meeting.

 

Section 3.9  Contracts and Transactions InvolvingDirectors.  No contract ortransaction between the Corporation and one or more of its directors orofficers, or between the Corporation and any other corporation, partnership,association, or other organization in which one or more of its directors orofficers are directors or officers, or have a financial interest, shall be voidor voidable solely for this reason, or solely because the director or officeris present at or participates in the meeting of the Board of Directors orcommittee thereof which authorizes the contract or transaction, or solelybecause his, her or their votes are counted for such purpose, if: (1) thematerial facts as to his or her relationship or interest and as to the contractor transaction are disclosed or are known to the Board of Directors or thecommittee, and the Board or committee in good faith authorizes the contract ortransaction by the affirmative votes of a majority of the disinteresteddirectors, 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 thecontract or transaction are disclosed or are known to the stockholders entitledto vote thereon, and the contract or transaction

 

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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 itis authorized, approved or ratified, by the Board of Directors, a committeethereof, or the stockholders. Common or interested directors may be counted indetermining the presence of a quorum at a meeting of the Board of Directors orof a committee which authorizes the contract or transaction.

 

**ARTICLEIV**

 

**Committeesof the Board of Directors**

 

Section 4.1  Appointment and Powers.  The Board of Directors may, by resolutionadopted by a majority of the Board, designate from time to time (subject toArticle V hereof) no less than three (3) and no more than six (6) of theirnumber to constitute an Executive Committee, and may delegate to such committeepower to authorize the seal of the Corporation to be affixed to all papers whichmay require it and to exercise in the intervals between the meetings of theBoard of Directors the powers of the Board in the management of the businessand affairs of the Corporation to the fullest extent permitted by Section141(c)(2) of the Delaware General Corporation Law; provided, however, that theExecutive Committee shall not have the power or authority to take any actionfor which a Supermajority Vote or other vote in excess of a majority of theBoard of Directors is required.  Eachmember of the Executive Committee shall continue to be a member thereof onlyduring the pleasure of a majority of the full Board of Directors.

 

The ExecutiveCommittee may act by a majority of its members at a meeting or by a writingsigned by all of its members.

 

All action by theExecutive Committee shall be reported to the Board of Directors at

 

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its meeting next succeeding such action.

 

Non-employeemembers of such Executive Committee shall be entitled to receive such fees andcompensation as the Board of Directors may determine.

 

The Board ofDirectors may also appoint a Finance Committee, a Corporate GovernanceCommittee, an Audit Committee, a Public Policy Committee and a CompensationCommittee and may also appoint such other standing or temporary committees fromtime to time as they may see fit, delegating to such committees all or any partof their own powers (subject to the provisions of these By-Laws); provided,however, that any compensation or benefits to be paid to an executive officerwho is also a director must be approved by the Board of Directors.  The members of such committees shall beentitled to receive such fees as the Board may determine.

 

The Board ofDirectors shall not amend, modify, vary or waive any of the terms of theAmended and Restated Agreement and Plan of Reorganization by and among TheCincinnati Gas & Electric Company, PSI Resources, Inc., PSI Energy, Inc.,the Corporation, Cinergy Corp., an Ohio corporation, and Cinergy Sub, Inc. datedas of December 11, 1992, as amended and restated as of July 2, 1993 and as ofSeptember 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 aSupermajority Vote of the Board of Directors.

 

**ARTICLEV**

 

**Officers, Agentsand 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

 

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Officer, a President, one or more Vice-Presidents, a Secretary, aTreasurer and a Controller, all of whom shall be elected by the Board ofDirectors by a Supermajority Vote, and shall hold office for one (1) year anduntil their successors are chosen and qualified.  Any number of such offices may be held by the same person, but noofficer shall execute, acknowledge or verify any instrument in more than onecapacity.  Any vacancy occurring in theoffice of the Chairman, Chief Executive Officer or President shall be filed bySupermajority Vote of the Board of Directors. The Chairman, Chief Executive Officer or President shall be subject toremoval without cause only by Supermajority Vote of the Board of Directors at aspecial meeting of the Board of Directors called for that purpose.

 

The Board ofDirectors may appoint, and may delegate power to appoint, such othernon-executive officers, agents and employees as it may deem necessary orproper, who shall hold their offices or positions for such terms, have suchauthority and perform such duties as may from time to time be determined by orpursuant to authorization of the Board of Directors.

 

Section 5.2  The Chairman of the Board.  The Chairman of the Board shall be adirector and shall preside at all meetings of the Board of Directors and, inthe absence or inability to act of the Chief Executive Officer, meetings ofstockholders and shall, subject to the Board’s direction and control, be theBoard’s representative and medium of communication, and shall perform suchother duties as may from time-to-time be assigned to the Chairman of the Boardby Supermajority Vote of the Board of Directors.  The Chairman of the Board shall direct the long-term strategicplanning process of the Corporation and shall also lend his or her expertise tothe President, as may be requested from time-to-time by the President.  The Chairman shall be a member of theExecutive Committee.

 

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Section 5.3  Vice-Chairman.  The Vice-Chairman of the Board shall be adirector and shall preside at meetings of the Board of Directors in the absenceor inability to act of the Chairman of the Board or meetings of stockholders inthe absence or inability to act of the Chief Executive Officer and the Chairmanof the Board.  The Vice-Chairman shallperform such other duties as may from time-to-time be assigned to him or her bySupermajority Vote of the Board of Directors. The Vice-Chairman shall be a member of the Executive Committee and maybe a member of such other committees of the Board as it shall from time to timedeem appropriate.

 

Section 5.4  Chief Executive Officer.  The Chief Executive Officer shall be adirector and shall preside at all meetings of the stockholders, and, in theabsence 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 operationsof the Corporation for the fiscal year to the stockholders at their annual meetingand from time-to-time shall report to the Board of Directors all matters withinhis or her knowledge which the interests of the Corporation may require bebrought to their notice. The Chief Executive Officer shall be the chairman ofthe Executive Committee and ex officio a member of all standingcommittees.  Where the offices ofPresident and Chief Executive Officer are held by different individuals, thePresident will report directly to the Chief Executive Officer.

 

Section 5.5  The President.  The President shall be the chief operatingofficer of the Corporation.  ThePresident shall have general and active management and direction of the affairsof the Corporation, shall have supervision of all departments and of allofficers of the Corporation, shall see that the orders and resolutions of theBoard of Directors and of the Executive Committee are carried into effect, andshall have the general powers and duties of supervision and management usuallyvested in the office of President of a corporation.  All corporate officers and

 

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functions except those reporting to the Chairman of the Board or theChief Executive Officer shall report directly to the President.

 

Section 5.6  The Vice-Presidents.  The Vice-Presidents shall perform suchduties as the Board of Directors shall, from time to time, require.  In the absence or incapacity of thePresident, the Vice President designated by the President or Board of Directorsor Executive Committee shall exercise the powers and duties of the President.

 

Section 5.7  The Secretary.  The Secretary shall attend all meetings ofthe Board of Directors, of the Executive Committee and any other committee ofthe Board of Directors and of the stockholders and act as clerk thereof andrecord all votes and the minutes of all proceedings in a book to be kept forthat purpose, and shall perform like duties for the standing committees whenrequired.

 

The Secretaryshall keep in safe custody the seal of the Corporation and, whenever authorizedby the Board of Directors or the Executive Committee, affix the seal to anyinstrument requiring the same.

 

The Secretaryshall see that proper notice is given of all the meetings of the stockholdersof the Corporation and of the Board of Directors and shall perform such otherduties as may be prescribed from time to time by the Board of Directors, theChairman, the Chief Executive Officer, or the President.

 

AssistantSecretaries.  At the request of theSecretary, or in his or her absence or inability to act, the AssistantSecretary or, if there be more than one, the Assistant Secretary designated bythe Secretary, shall perform the duties of the Secretary and when so actingshall have all the powers of and be subject to all the restrictions of theSecretary.  The Assistant Secretaries

 

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shall perform such other duties as may from time to time be assigned tothem by the President, the Secretary, or the Board of Directors.

 

Section 5.8  The Treasurer.  The Treasurer shall be the financial officerof the Corporation, shall keep full and accurate accounts of all collections,receipts and disbursements in books belonging to the Corporation, shall depositall moneys and other valuables in the name and to the credit of theCorporation, 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 ofDirectors, the Chairman, the Chief Executive Officer, or the President, takingproper vouchers therefor, and shall render to the President, the ChiefExecutive Officer, the Chairman, and/or directors at all regular meetings ofthe Board, or whenever they may require it, and to the annual meeting of thestockholders, an account of all his or her transactions as Treasurer and of thefinancial condition of the Corporation.

 

The Treasurershall 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 theBoard of Directors the Treasurer shall give the Corporation a bond in a formand in a sum with surety satisfactory to the Board of Directors for thefaithful performance of the duties of his or her office and the restoration tothe Corporation in the case of his or her death, resignation or removal fromoffice of all books, papers, vouchers, money and other property of whateverkind in his or her possession belonging to the Corporation.

 

AssistantTreasurers.  At the request of theTreasurer, or in his or her absence or inability to act, the AssistantTreasurer or, if there be more than one, the Assistant Treasurer designated bythe Treasurer, shall perform the duties of the Treasurer and when so actingshall

 

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have all the powers of and be subject to all the restrictions of theTreasurer.  The Assistant Treasurersshall perform such other duties as may from time to time be assigned to them bythe President, the Treasurer, or the Board of Directors.

 

Section 5.9  The Controller.  The Controller shall have control over allaccounts and records of the Corporation pertaining to moneys, properties,materials and supplies. He or she shall have executive direction over thebookkeeping and accounting departments and shall have general supervision overthe records in all other departments pertaining to moneys, properties,materials and supplies.  He or she shallhave such other powers and duties as are incident to the office of Controllerof a corporation and shall be subject at all times to the direction and controlof the Board of Directors, the Chairman, the Chief Executive Officer, thePresident, or a Vice President.

 

AssistantControllers.  At the request of theController, or in his or her absence or inability to act, the AssistantController or, if there be more than one, the Assistant Controller designatedby the Controller, shall perform the duties of the Controller and when soacting shall have all the powers of and be subject to all the restrictions ofthe Controller.  The AssistantControllers shall perform such other duties as may from time to time beassigned to them by the President, the Controller, or the Board of Directors.

 

Section 5.10  Resignation, Compensation and Bond.  Any resignation from office by any officerof the Corporation also shall be deemed, to the extent applicable, to be aresignation from any similar office held by such resigning officer at anyaffiliate or subsidiary of the Corporation, unless otherwise expressly providedfor within the resigning officer’s letter of resignation.  The compensation of the officers of theCorporation shall be fixed by the Compensation Committee of the Board ofDirectors or, in lieu of the Compensation Committee, by

 

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the Board of Directors, but this power may be delegated to any officerin respect of other officers under his or her control.  The Corporation may secure the fidelity ofany or all of its officers, agents or employees by bond or otherwise.

 

**ARTICLEVI**

 

**Indemnification**

 

Section 6.1  Indemnification of Directors, Officers,Employees and Agents.

 

(A) Any person whowas 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 theright of the Corporation) by reason of the fact that he or she is or was adirector, officer, employee or agent of the Corporation, or is or was servingat the request of the Corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterprise(specifically including employee benefit plans), shall be indemnified by theCorporation, if, as and to the extent authorized by applicable law, againstexpenses (specifically including attorney’s fees), judgments, fines(specifically including any excise taxes assessed on a person with respect toan employee benefit plan) and amounts paid in settlement actually andreasonably incurred by him or her in connection with the defense or settlementof such action, suit or proceeding, if he or she acted in good faith and in amanner he or she reasonably believed to be in or not opposed to the best interestsof the Corporation and, with respect to any criminal action or proceeding, hadno reasonable cause to believe his or her conduct was unlawful. The terminationof any action, suit or proceeding by judgment, order, settlement, orconviction, or upon a plea of nolo contendere or its equivalent,

 

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shall not, of itself, create a presumption that the person did not actin good faith and in a manner he or she reasonably believed to be in and notopposed to the best interests of the Corporation and, with respect to anycriminal action or proceeding, he or she had no reasonable cause to believe hisor her conduct was unlawful.

 

(B)  The Corporation shall, to the extent notprohibited by applicable law, indemnify or agree to indemnify any person whowas 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 toprocure a judgment in its favor by reason of the fact that he or she is or wasa director, officer, employee, or agent of the Corporation or is or was servingat the request of the Corporation as a director, trustee, officer, employee, oragent of another corporation, domestic or foreign, non-profit or for-profit, partnership,joint venture, trust or other enterprise (specifically including employeebenefit plans), against expenses (including attorneys’ fees) actually andreasonably incurred by him or her in connection with the defense or settlementof such action or suit if he or she acted in good faith and in a mannerreasonably believed to be in or not opposed to the best interests of theCorporation; provided that, no indemnification shall be made in respect of anyclaim, issue or matter as to which such person shall have been adjudged to beliable to the Corporation unless and only to the extent that the Court ofChancery or the court in which such action or suit was brought shall determineupon application that, despite the adjudication of liability but in view of allthe circumstances of the case, such person is fairly and reasonably entitled toindemnity for such expenses which the Court of Chancery or such other courtshall deem proper.

 

(C) To the extentthat a director or officer of the Corporation has been successful on the meritsor otherwise in defense of any action, suit, or proceeding referred to in theparagraphs

 

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(A) or (B) of this Section, or in defense of any claim, issue, ormatter therein, he or she shall be indemnified against expenses, specificallyincluding attorneys’ fees, actually and reasonably incurred by him or her inconnection therewith.

 

(D) Anyindemnification under Paragraphs (A) and (B) of this Section, unless ordered bya court, shall be made by the Corporation only as authorized in the specificcase upon a determination that indemnification of the director, officer,employee, or agent is proper in the circumstances because he or she has met theapplicable standard of conduct set forth in such Paragraphs (A) and (B).  Such determination shall be made asfollows:  (1) by a majority vote of theBoard of Directors, even if less than a quorum, consisting of directors whowere not parties to such action, suit, or proceeding; (2) by a committee ofsuch directors designated by a majority vote of such directors, even if lessthan a quorum; (3) if the quorum described in (D)(1) of this Section is notobtainable or, even if obtainable a quorum of disinterested directors sodirects, by independent legal counsel in a written opinion; or (4) by thestockholders.

 

Section 6.2  Advances for Litigation Expenses.  Expenses (including attorneys’ fees)incurred by a director, officer, employee, or agent of the Corporation indefending any civil, criminal, administrative or investigative action, suit orproceeding, shall be paid by the Corporation as they are incurred in advance ofthe final disposition of such action, suit or proceeding upon receipt of anundertaking by or on behalf of such director, officer, employee, or agent:  (1) to repay such amount if it shallultimately be determined that he is not entitled to be indemnified by theCorporation as authorized in this Article VI; and (2) to cooperatereasonably with the Corporation concerning the action, suit or proceeding.

 

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Section 6.3  Indemnification Nonexclusive.  The indemnification provided by this Articleshall not be exclusive of and shall be in addition to any other rights grantedto those seeking indemnification under the Certificate of Incorporation, theseBy-Laws, any agreement, any vote of stockholders or disinterested directors orotherwise, both as to action in his or her official capacity and as to actionin another capacity while holding such office and shall continue as to a personwho has ceased to be a director, trustee, officer, employee, or agent and shallinure to the benefit of the heirs, executors, and administrators of such aperson.

 

Section 6.4  Indemnity Insurance.  The Corporation may purchase and maintaininsurance or furnish similar protection, including but not limited to trustfunds, letters of credit, or self-insurance, on behalf of or for any person whois or was a director, officer, employee, or agent of the Corporation, or is orwas serving at the request of the Corporation as a director, trustee, officer,employee or agent of another corporation, domestic or foreign, nonprofit or forprofit, partnership, joint venture, trust, or other enterprise, against anyliability asserted against him or her and incurred by him or her in any suchcapacity, or arising out of his or her status as such, whether or not theCorporation would have the power to indemnify him or her against such liabilityunder this Article.  Insurance may bepurchased from or maintained with a person in which the Corporation has afinancial interest.

 

Section 6.5  Definitions.  For purposes of this Article:  (1) a person who acted in good faith and ina manner he or she reasonably believed to be in the interest of theparticipants and beneficiaries of an employee benefit plan shall conclusivelybe deemed to have acted in a manner “not opposed to the best interests of theCorporation”; (2) a person shall be deemed to have acted in “good faith” and ina manner he reasonably believed to be in or not opposed to the best

 

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interests of the Corporation, or, with respect to any criminal actionor proceeding, to have had no reasonable cause to believe his conduct wasunlawful, if his action is based on the records or books of account of theCorporation or another enterprise, or on information supplied to him by theofficers of the Corporation or another enterprise in the course of theirduties, or on the advice of legal counsel for the Corporation or anotherenterprise or on information or records given or reports made to theCorporation or another enterprise by an independent certified public accountantor by an appraiser or other expert selected with reasonable care by theCorporation or another enterprise; (3) the term “another enterprise” as used inthis Article VI shall mean any other corporation or any partnership, jointventure, trust, employee benefit plan or other enterprise of which such personis or was serving at the request of the Corporation as a director, officer,employee or agent; and (4) references to “the Corporation” shall include, inaddition to the resulting corporation, any constituent corporation (includingany constituent of a constituent) absorbed in a consolidation or merger, which,if its separate existence had continued, would have had power and authority toindemnify its directors, officers, employees, and agents.

 

**ARTICLE VII**

** **

**Common Stock**

 

Section 7.1  Certificates.  Certificates for stock of the Corporationshall be in such form as shall be approved by the Board of Directors and shallbe signed in the name of the Corporation by the Chairman or the President or aVice President, and by the Treasurer or an Assistant Treasurer, or the Secretaryor an Assistant Secretary.  Suchcertificates may be sealed with the seal of the Corporation or a facsimilethereof.  Any of or all the signatureson a certificate

 

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may be a facsimile.  In case anyofficer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate shall have ceased to be suchofficer, transfer agent or registrar before such certificate is issued, it maybe issued by the Corporation with the same effect as if he or she were suchofficer, transfer agent or registrar at the date of issue.

 

Section 7.2  Transfers of Stock.  Transfers of stock shall be made only uponthe 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 properlyendorsed.  The Board of Directors shallhave the power to make all such rules and regulations, not inconsistent withthe Certificate of Incorporation and these By-Laws and the law, as the Board ofDirectors may deem appropriate concerning the issue, transfer and registrationof certificates for stock of the Corporation. The Board of Directors or the Finance Committee  may appoint one (1) or more transfer agentsor registrars of transfers, or both, and may require all stock certificates tobear 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 anycertificate theretofore issued by it, alleged to have been lost, stolen ordestroyed, and the Corporation may require the owner of the lost, stolen ordestroyed certificate or his or her legal representative to give theCorporation a bond sufficient to indemnify it against any claim that may bemade against it on account of the alleged loss, theft or destruction of anysuch certificate or the issuance of any such new certificate. The Board ofDirectors may require such owner to satisfy other reasonable requirements.

 

Section 7.4  Stockholder Record Date.  (A) In order that the Corporation maydetermine the stockholders entitled to notice of or to vote at any meeting ofstockholders or any

 

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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) daysbefore the date of such meeting.

 

If no record dateis fixed by the Board of Directors, the record date for determiningstockholders entitled to notice of or to vote at a meeting of stockholdersshall be at the close of business on the day next preceding the day on whichnotice is given, or, if notice is waived, at the close of business on the daynext preceding the day on which the meeting is held.

 

A determination ofstockholders of record entitled to notice of or to vote at a meeting ofstockholders shall apply to any adjournment of the meeting; providing, however,that the Board of Directors may fix a new record date for the adjournedmeeting.

 

(B)                                Inorder that the Corporation may determine the stockholders entitled to consentto corporate action in writing without a meeting, the Board of Directors mayfix a record date, which record date shall not precede the date upon which theresolution fixing the record date is adopted by the Board of Directors, andwhich record date shall not be more than ten days after the date upon which theresolution fixing the record date is adopted by the Board of Directors.  If no record date has been fixed by theBoard of Directors, the record date for determining stockholders entitled toconsent to corporate action in writing without a meeting, when no prior actionby the Board of Directors is required by law, shall be the first date on whicha signed written consent setting forth the action taken or proposed to be takenis delivered to the Corporation by delivery to its registered office in thisState, its principal place of business, or an officer or agent of theCorporation having custody of the book in which proceedings of meetings ofstockholders are recorded.  Deliverymade to a corporation’s registered office shall be by hand or by certified orregistered mail, return receipt requested. If no record date has been fixed by the Board of Directors

 

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and prior action by the Board of Directors is required by law, therecord date for determining stockholders entitled to consent to corporateaction in writing without a meeting shall be at the close of business on the dayon which the Board of******Directors adopts the resolutions taking******such******prior action.

 

(C)                                Inorder that the Corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights or thestockholders 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 notprecede 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 suchaction.  If no record date is fixed, therecord date for determining stockholders for any such purpose shall be at theclose of business on the day on which the Board of Directors adopts theresolution relating thereto.

 

Section 7.5  Beneficial Owners.  The Corporation shall be entitled torecognize the exclusive right of a person registered on its books as the ownerof shares to receive dividends, and to vote as such owner, and to hold liablefor calls and assessments a person registered on its books as the owner ofshares, and shall not be bound to recognize any equitable or other claim to orinterest in such share or shares on the part of any other person, whether ornot it shall have express or other notice thereof, except as otherwise providedby law.

 

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**ARTICLEVIII**

 

**Seal**

 

Section 8.1  Seal.  The seal of the Corporation shall be circular in form and shallbear, in addition to any other emblem or device approved by the Board ofDirectors, the name of the Corporation, the year of its incorporation and thewords “Corporate Seal” and “Delaware”. The seal may be used by causing it or a facsimile thereof to beimpressed 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 bystatute, or under any provision of the Certificate of Incorporation or theseBy-Laws, a written waiver thereof, signed by the person entitled to notice, ora waiver by electronic transmission by******the person entitled to notice,******whether before or after the time statedtherein, shall be deemed equivalent to notice. In the case of a stockholder, such waiver of notice may be signed bysuch stockholder’s attorney or proxy duly appointed in writing.  Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thestockholders, directors or members of a committee of directors need bespecified in any written waiver of notice******or any waiver by******electronic transmission.

 

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**ARTICLEX**

 

**FiscalYear**

 

Section 10.1  Fiscal Year. The Fiscal Year of theCorporation shall begin on the first day of January and terminate on thethirty-first day of December each year.

 

**ARTICLEXI**

 

**Contracts****, Checks,etc.**

 

Section 11.1  Contracts, Checks, etc. The Board ofDirectors or the Finance Committee may by resolution adopted at any meetingdesignate officers of the Corporation who may in the name of the Corporationexecute contracts, checks, drafts, and orders for the payment of money in itsbehalf and, in the discretion of the Board of Directors or the FinanceCommittee, such officers may be so authorized to sign such contracts or checkssingly without the necessity of counter-signature.

 

**ARTICLEXII**

 

**Amendments**

 

Section 12.1  Amendments.  Except as set forth below, these By-Laws may be amended or repealedby the Board of Directors or by the affirmative vote of the holders of amajority of the issued and outstanding common stock of the Corporation, or bythe unanimous written consent of the holders of the issued and outstandingcommon stock of the Corporation.

 

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Notwithstandingthe foregoing paragraph, the affirmative vote of the holders of at least 80% ofthe issued and outstanding shares of common stock of the Corporation shall berequired 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 thisparagraph of Section 12.1 of these By-Laws, in addition to any requirements oflaw and any provisions of the Certificate of Incorporation, any By-law, or anyresolution of the Board of Directors adopted pursuant to the Certificate ofIncorporation (and notwithstanding that a lesser percentage may be specified bylaw, the Certificate of Incorporation, these By-Laws, such resolution, orotherwise).

 

Notwithstandingany of the foregoing, the affirmative vote of a majority of the holders of theissued and outstanding common stock of the Corporation shall be required toamend, alter or repeal, or adopt any provision inconsistent with (i) anyprovision of these By-Laws requiring a Supermajority Vote of the Board ofDirectors (including this provision of Section 12.1) or (ii) theresponsibilities of the Chief Executive Officer or President as set forth inSection 5.4 or Section 5.5, and the Board of Directors shall not recommend anysuch amendment to such provisions to the stockholders unless the proposedamendment is approved by the Board of Directors acting by Supermajority Vote.

 

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**ARTICLEXIII**

 

**Dividends**

 

Section 13.1  Dividends.  Dividends upon the capital stock of the Corporation, subject tothe provisions of the Certificate of Incorporation, if any, may be declared bythe Board of Directors at any regular or special meeting, and may be paid incash, in property, or in shares of the capital stock.  Before payment of any dividend, there may be set aside out of anyfunds of the Corporation available for dividends such sum or sums as the Boardof Directors from time to time, in its absolute discretion, deems proper as areserve or reserves to meet contingencies, or for equalizing dividends, or forrepairing or maintaining any property of the Corporation, or for any properpurpose, and the Board of Directors may modify or abolish any such reserve.

 

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