Colorado PUC E-Filings System

Proceeding No. 18F-____E
Attachment D
Page 1 of 34

ARTICLES OF INCORPORATION
AND BYLAWS
As Amended and Restated by
the Members on April 6, 2016

Tri-State Generation and Transmission Association, Inc.
1100 West 116th Avenue
Westminster, Colorado 80234
(303) 452-6111

April 2016

 Proceeding No. 18F-____E
Attachment D
Page 2 of 34

AMENDED AND RESTATED ARTICLES OF INCORPORATION
PAGE
1
2
3
6

ARTICLES I—III
ARTICLES IV—VI
ARTICLE VII
ARTICLE VIII
AMENDED AND RESTATED BYLAWS
ARTICLE I – MEMBERSHIP
Section 1
Membership
Section 2
Purchase of Electric Power and Energy
Section 3
Withdrawal, Expulsion, Termination and Reinstatement of
Membership

7
7
8
8

ARTICLE II – RIGHTS AND LIABILITIES OF MEMBERS
Section 1
Property Interest of Members
Section 2
Non-Liability for Debts of Corporation
Section 3
Operation of Member’s System
Section 4
Transfers by a Member
Section 5
Debt Responsibility
Section 6
Independent Operation
Section 7
Control

10
10
10
10
10
11
11
11

ARTICLE III – MEETINGS OF MEMBERS
Section 1
Annual Meeting
Section 2
Special Meetings
Section 3
Notice of Meetings
Section 4
Delegates
Section 5
Quorum
Section 6
Voting

12
12
12
12
12
13
13

ARTICLE IV – DIRECTORS
Section 1
General Powers
Section 2
Qualifications; Removal
Section 3
Election and Certification
Section 4
Tenure of Office
Section 5
Vacancies
Section 6
Compensation
Section 7
Action Taken Without a Meeting

13
13
13
13
14
14
14
15

i

 Proceeding No. 18F-____E
Attachment D
Page 3 of 34

ARTICLE V – MEETINGS OF DIRECTORS
Section 1
Regular Meetings
Section 2
Special Meetings
Section 3
Notice of Directors’ Meetings
Section 4
Quorum
Section 5
Presence of Others

PAGE
15
15
15
15
15
16

ARTICLE VI – OFFICERS
Section 1
Number
Section 2
Election and Term of Office
Section 3
Removal of Officers by the Board of Directors
Section 4
Chairman and President
Section 5
Vice-Chairman
Section 6
Secretary
Section 7
Treasurer
Section 8
Chief Executive Officer
Section 9
Assistant Secretaries
Section 10
Bonds of Officers
Section 11
Compensation
Section 12
Reports
Section 13
Executive Committee

16
16
16
16
16
17
17
18
18
19
19
19
19
19

ARTICLE VII – OPERATION AS A COOPERATIVE CORPORATION
Section 1
Cooperative Corporation
Section 2
Interest on Dividends on Capital Prohibited
Section 3
Patronage Capital in Connection With Furnishing
Electric Energy

20
20
20

ARTICLE VIII – DISPOSITION OF PROPERTY

22

ARTICLE IX – SEAL

22

ARTICLE X – FINANCIAL TRANSACTIONS
Section 1
Contracts
Section 2
Checks, Drafts, Etc.
Section 3
Deposits
Section 4
Fiscal Year

23
23
23
23
23

ARTICLE XI – MISCELLANEOUS
Section 1
Membership in Other Organizations
Section 2
Interested Transactions
Section 3
Waiver of Notice
Section 4
Accounting System and Reports

23
23
23
24
24

20

 Proceeding No. 18F-____E
Attachment D
Page 4 of 34

PAGE
ARTICLE XI – MISCELLANEOUS, continued
Section 5
Indemnification

24

ARTICLE XII – AMENDMENTS

27

ARTICLE XIII – MERGER OR CONSOLIDATION

28

 Proceeding N0. 18F- 

Attachment 
Page 5 of 34

Proceeding No. 18F-____E
Attachment D
Page 6 of 34

AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.

ARTICLE I
NAME
The name of this Corporation is TRI-STATE GENERATION
AND TRANSMISSION ASSOCIATION, INC.

ARTICLE II
PURPOSES
This Corporation is organized for the purposes of:
(a)

Generating, manufacturing, purchasing, acquiring
and accumulating electric power and energy for its
members and transmitting, distributing, furnishing,
selling and disposing of such electric power and
energy primarily to its members, provided that this
Corporation may dispose of its electric power and
energy to other than members insofar as it may have
excess power and energy which can be disposed of
on an interchange or sales basis for the ultimate
benefit of its members; and

(b)

Any other lawful purpose.

ARTICLE III
DURATION
This Corporation shall have perpetual existence.

1

 Proceeding No. 18F-____E
Attachment D
Page 7 of 34
ARTICLE IV
PRINCIPAL PLACE OF BUSINESS
The principal office of this Corporation shall be 1100 West
116th Avenue, Westminster, Colorado 80234, and this Corporation may
maintain offices and operations at such other place or places in the
United States as the Board of Directors may from time to time decide.

ARTICLE V
MEMBERSHIP AND VOTING
Section 1. Membership. Membership in this Corporation
shall be limited to any cooperatively-owned power supplier, public
power district or other entity accepted for membership by the Board of
Directors of this Corporation in accordance with the Bylaws of this
Corporation.
Section 2. Voting. Each member shall be entitled to one (1)
vote and no more upon each matter submitted to a vote at a meeting of
the members. Proxy voting, voting by mail, and cumulative voting shall
not be permitted. At all meetings of the members at which a quorum is
present all questions shall be decided by a vote of a majority of the
members voting thereon, except as otherwise provided by applicable
law, these Articles of Incorporation or the Bylaws of this Corporation.

ARTICLE VI
ORGANIZATIONAL STRUCTURE
This Corporation is formed without any purpose of direct gain
or profit to itself, and it shall be operated on a cooperative, non-profit
basis for the mutual benefit of its members. This Corporation’s
operations shall be conducted such that all members furnish capital for
this Corporation through their patronage. This Corporation shall be
obligated to account on a patronage basis to all its members as provided
in the Bylaws. In no event shall this Corporation permit non-member
sales on a patronage basis. In the event of dissolution, the disposition of
the net earnings and the assets of this Corporation shall be as provided
in the Bylaws.

2

 Proceeding No. 18F-____E
Attachment D
Page 8 of 34

ARTICLE VII
BOARD OF DIRECTORS
Section 1. Number and Qualifications. The business and
affairs of this Corporation shall be managed by a Board of Directors.
Except as set forth in Article XIII of the Bylaws, the number of
directors shall equal the number of members of this Corporation and
one (1) director shall be elected by each member. The names and post
office addresses of the current directors of this Corporation, who shall
manage the business and affairs of this Corporation until the next
annual meeting of members or until their successors shall have been
elected and shall have qualified according to law and the Bylaws of this
Corporation, are:
Mr. Lyle Adair, Director
P.O. Box 2007
Gallup, NM 87301

Mr. Wayne R. Cobb, Director
HCR 75, Box 32
Merriman, NE 69218

Mr. Harold Baca, Director
P.O. Box 1331
Socorro, NM 87801

Mr. Louis Costello, Director
7780 Highway 135
Gunnison, CO 81230

Mr. Lloyd E. Barling, Director
P.O. Box 5
Meeteetse, WY 82433

Mr. Jay W. Cox, Director
P.O. Box 77
Winston, NM 87943

Mr. Robert Bledsoe, Director
Box 435
Hugo, CO 80821

Mr. William W. Dalles, Director
179 Dalles Lane
Laramie, WY 82070-9725

Mr. James Boyd Jr., Director
151 State Highway 66
Longmont, CO 80501

Mr. Bernard Fehringer, Director
631 Road 115
Sidney, NE 69162-4108

Mr. Tony Casados, Director
P.O. Box 186
Tierra Amarilla, NM 87575

Mr. Jack Finnerty, Director
285 Slater Road
Wheatland, WY 82201

Mr. Wayne Child, Director
9816 Child Road
Cheyenne, WY 82009

Mr. R.W. Gillespie, Director
P.O. Box 218
Springer, NM 87747

3

 Proceeding No. 18F-____E
Attachment D
Page 9 of 34

Mr. A. W. Gnatkowski, Director
Box 48 Ancho Route
Carrizozo, NM 88301

Mr. Gary Kniss, Director
Route 2, Box 336
Bayard, NE 69334

Mr. Leroy Gonzales, Director
P.O. Box 416
Peñasco, NM 87553

Mr. Gerald W. Lorenz, Director
Route 1, Box 30
San Acacio, CO 81151

Mr. Rick L. Gordon, Director
P.O. Box 518
Simla, CO 80835-0518

Mr. Gary L. Merrifield, Director
Box 152
Buena Vista, CO 81211

Mr. Ed Hansen, Director
4554 County Road 74E
Livermore, CO 80536

Mr. Davin Montoya, Director
7463 Highway 160
Hesperus, CO 81326

Mr. Timothy Hoffner, Director
7513 Road 6
Wiggins, CO 80654

Mr. Christopher Moore, Director
P.O. Box 1491
Montrose, CO 81402

Mr. Harold Hopkin, Director
203 Lane 10-1/2
Powell, WY 82435

Mr. Marcellino Ortiz, Director
P.O. Box 117
Rowe, NM 87562

Mr. Donald Johnson, Director
37488 County Road 18
Holyoke, CO 80734

Mr. David R. Salazar, Director
P.O. Box 1052
Española, NM 87532

Mr. James H. Johnson, Director
P.O. Box 3135
Winter Park, CO 80482

Mr. C. Jim Soehner, Director
38566 County Road 13
Wray, CO 80758

Mr. Hal Keeler, Director
4555 Solana Road SE
Deming, NM 88030

Mr. Wid Stevenson, Director
HCR 62, Box 39
Amistad, NM 88410

Mr. Everett D. Kilmer, Director
Box 714
Lusk, WY 82225

Mr. Darryl D. Stout, Director
P.O. Box 1056
Meeker, CO 81641

4

 Proceeding No. 18F-____E
Attachment D
Page 10 of 34

Mr. Harold Thompson, Director
P.O. Box 9
Jeffrey City, WY 82310-0009

Mr. Gary Wood, Director
P.O. Box 556
Cloudcroft, NM 88317

Mr. Jerry Underwood, Director
7000 Valley Road
Alliance, NE 69301

Mr. Bill Wright, Director
47818 Road X
Walsh, CO 81090-0267

Mr. Donald Tripple, Director
250511 County Road S
Gering, NE 69341

Mr. Robert Yeik, Director
Route 2, Box 317
Torrington, WY 82240

Mr. Travis Waller, Director
P.O. Box 7586
Pueblo West, CO 81007

Mr. Jack N. Young, Director
P.O. Box 443
Monticello, UT 84535

Ms. Kristi Westfall, Director
P.O. Box 212
Ouray, CO 81427

Mr. Terry Zeigler, Director
P.O. Box 618
Grant, NE 69140

Section 2. Director’s Terms. Except as hereafter provided,
the term of each director shall be from the time he or she is elected by
his or her member and the fact of such election is certified to this
Corporation by such member, in writing, until his or her member elects
some other person to serve and the fact of such election is certified to
this Corporation by such member in writing. Notwithstanding the
foregoing, a person shall be eligible to be elected a director, and shall
be eligible to remain a director, only if he or she has the qualifications
set forth in the Bylaws. In addition, a director may be removed from
the Board of Directors by the members in the manner provided in the
Bylaws.
Section 3. Director Liability. No director of this Corporation
shall be personally liable to this Corporation or its members for
monetary damages for breach of fiduciary duty as a director, except for
liability:
(a)

for a breach of the director's duty of loyalty
to this Corporation or its members;

(b)

for acts or omissions not in good faith or
which involve intentional misconduct or a
knowing violation of law;
5

 Proceeding No. 18F-____E
Attachment D
Page 11 of 34

(c)

for a transaction from which the director derived an
improper personal benefit; or

(d)

for an act or omission occurring prior to the date
when the provisions of this Section (or predecessor
thereto) became effective.

It is the intention of the members of this Corporation to eliminate or limit the
personal liability of the directors of this Corporation to the greatest extent
permitted under Colorado law. If amendments to the Colorado Revised
Statutes are passed after the effective date of this Section which authorize
cooperatives to act to further limit or eliminate the personal liability of
directors, then the liability of the directors of this Corporation shall be limited
or eliminated to the greatest extent permitted by the Colorado Revised
Statutes, as so amended. Any repeal or modification of this Section by the
members of this Corporation shall not adversely affect any right of or any
protection available to a director of this Corporation which is in existence at
the time of such repeal or modification.
Section 4. Indemnification. This Corporation shall indemnify
persons who are or were directors and officers, and may indemnify employees
and agents, to the full extent allowed by law, as set forth in the Bylaws.

ARTICLE VIII
BYLAWS
The Bylaws of this Corporation may be altered, amended or repealed
by the members or the directors of this Corporation in the manner specified in
the Bylaws.

6

 Proceeding No. 18F-____E
Attachment D
Page 12 of 34

AMENDED AND RESTATED
BYLAWS
OF
TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.

ARTICLE I
MEMBERSHIP
Section 1: Membership. Applicants for membership in this Corporation shall
be eligible for membership by:
(a)

Executing a written application for membership
and agreeing to pay the membership subscription,
if any, established by the Board of Directors from
time to time;

(b)

Agreeing to purchase from this Corporation
electric power and energy as hereinafter specified
in Section 2 of this Article I; and

(c)

Subject to Sections 6 and 7 of Article II of these
Amended and Restated Bylaws, agreeing to
comply with and be bound by the Articles of
Incorporation and Bylaws of this Corporation and
any rules and regulations that relate to or concern
the governance, oversight or management of this
Corporation as adopted by the Board of Directors.

Each member of this Corporation as of the date of these Amended and
Restated Bylaws shall be and continue to be members of this Corporation,
until termination of such membership as contemplated herein. Subject to the
foregoing, no applicant shall become a member unless and until it has been
accepted for membership by the Board of Directors or the members. No
member may hold more than one membership in this Corporation, and no
membership in this Corporation shall be transferable. Each member shall be
entitled to one (1) vote and no more upon each matter submitted to vote at a
meeting of the members. Provision may be made in these Bylaws for
additional classes of membership.

7

 Proceeding No. 18F-____E
Attachment D
Page 13 of 34
Section 2: Purchase of Electric Power and Energy.
(a)

Unless otherwise specified by written agreement,
each member shall terminate any contract which it
may have for the purchase of electric power and
energy from any other supplier when electric
power and energy becomes available from this
Corporation or as soon thereafter as it may legally
do so, and shall purchase from this Corporation all
electric power and energy used by the member.
Each member shall pay therefor monthly at rates or
on a basis to be determined from time to time in
accordance with these Bylaws. In connection with
such purchase, each member and this Corporation
expressly disclaim any intent or agreement to be a
partnership, joint venture, single or joint enterprise,
or any other business form except that of a
cooperative corporation and member

(b)

It is expressly understood that amounts paid for
electric power and energy in excess of the cost of
service are furnished by members as capital in this
Corporation, and not as profit of or to this
Corporation, and each member shall be credited
with capital so furnished as provided in these
Bylaws. Each member shall also pay all amounts
owed by such member to this Corporation as and
when the same shall become due and payable.

(c)

The electric power and energy purchase
requirements set forth in this section shall apply to
members’ all-requirements contracts with Tri-State
Generation and Transmission Association, Inc., in
existence prior to the effective date of these
Amended and Restated Bylaws.

Section 3: Withdrawal, Expulsion, Termination and Reinstatement of
Membership.
(a)

A member may withdraw from membership upon
compliance with such equitable terms and
conditions as the Board of Directors may prescribe
provided, however, that no member shall be
permitted to withdraw until it has met all its
contractual obligations to this Corporation. The
8

 Proceeding No. 18F-____E
Attachment D
Page 14 of 34

Board of Directors may, by the affirmative vote of
not less than two-thirds (2/3) of all the directors,
expel any member who fails to comply with any of
the provisions of the Articles of Incorporation,
Bylaws, or rules and regulations adopted by the
Board of Directors from time to time, but only if
such member shall have been given written notice
by the Secretary of this Corporation that such
failure makes it liable for expulsion from
membership, and such failure shall have continued
for at least ten (10) days after such notice was
given. Any expelled member may be reinstated by
vote of the Board or by vote of the members at any
annual or special meeting.
(b)

Upon withdrawal, cessation of existence, or
expulsion of a member, the membership of such
member shall thereupon terminate. Termination of
membership in any manner shall not release a
member from any debts due this Corporation nor
impair the obligations of a member under any
contract with this Corporation.

(c)

The Board of Directors shall have authority to
prescribe equitable terms and conditions to be
applied when a member withdraws from
membership, ceases existence, or is expelled from
membership, and such may be done by policy or
otherwise and may include procedures for the
establishment of a trust fund to receive on behalf of
such member’s patrons all patronage capital as this
Corporation may from time to time distribute to all
of its members, or in lieu thereof procedures
whereby a member proposing to withdraw from
membership or ceases existence or who is expelled
from membership, may elect to receive a
discounted amount of patronage capital which has
been allocated at the time of such withdrawal,
cessation of existence, or expulsion from
membership.

9

 Proceeding No. 18F-____E
Attachment D
Page 15 of 34
ARTICLE II
RIGHTS AND LIABILITIES OF MEMBERS
Section 1: Property Interest of Members. Members shall have no individual
or separate interest in the property or assets of this Corporation, except that
upon dissolution, after (a) all debts and liabilities of this Corporation shall
have been paid, and (b) all capital furnished through patronage shall have
been returned, as provided in these Bylaws, the remaining property and assets
of this Corporation shall be distributed among the members in the proportion
which the aggregate patronage of each bears to the total patronage of all
members and former members pursuant to the provisions of applicable law.
Section 2: Non-Liability For Debts of Corporation. The private property of
the members shall be exempt from execution or other liability for the debts of
this Corporation and no member shall be liable or responsible for any debts or
liabilities of this Corporation.
Section 3: Operation of Member’s System. Except to the extent that failure
shall be due to a cause beyond its control (such as failure of facilities, flood,
earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance, labor
disturbance, sabotage, inability to obtain permits, licenses, rights-of-way or
authorizations from any local, state or federal agency or any person, or
restraint by court or public authority), which by exercise of due foresight the
member could not have reasonably been expected to avoid, and which by
exercise of due diligence it shall be unable to overcome, each member shall
continuously operate and maintain its system for the full term of its allrequirements contract with this Corporation, using reasonable diligence to
supply therefrom to patrons within its service area (without contraction due to
acts of omission of the member) electric energy provided by this Corporation
pursuant to the all-requirements contract. This provision is enforceable by
specific performance and/or injunction.
Section 4: Transfers by a Member. A member shall not take or suffer to be
taken, with respect to a person or entity other than another member, any steps
for reorganization or to consolidate with or merge into any corporation, or to
dissolve and wind up its affairs, or to sell, lease, transfer or otherwise dispose
of all or a substantial portion of its assets without approval of the Board of
Directors. The Board of Directors shall grant such approval if (a) either (i) the
member pays and discharges this Corporation from further liability with
respect to that member’s proportionate share (as fairly apportioned by the
Board) of this Corporation’s long-term obligations (such as promissory notes,
purchased electric energy, fuel, plant or equipment leases and the like) which
have been incurred by this Corporation in order to have available electric
energy service assuming compliance with these Bylaws; or (ii) the transferee
or surviving corporation, as the case may be, is legally, financially and
10

 Proceeding No. 18F-____E
Attachment D
Page 16 of 34

technically capable of performing the member’s obligations and assumes, by
delivery to this Corporation of a written instrument (satisfactory in form to
this Corporation), all of the member’s obligations; (b) the transfer will not
make obtaining by this Corporation of debt capital unduly more difficult,
expensive or burdensome; and (c) other conditions reasonably set by the
Board of Directors to financially protect this Corporation and its other
members or required by or on behalf of the holders of any long-term debt
obligations then outstanding are met.
Section 5: Debt Responsibility. Each member shall pay all amounts owed by
it to this Corporation as and when the same shall become due and payable.
Any amount owed by a member to this Corporation shall first be deducted and
offset against any payment or distribution by this Corporation of (a) capital
furnished by or allocated to the member pursuant to Article VII of these
Bylaws, (b) refunds with respect to revenues paid by the member for services
provided by this Corporation, and (c) other amounts that may be owed to that
member.
Section 6: Independent Operation. This Corporation and member agree that
the Corporation shall independently operate and maintain an electricity
generation and transmission system and that the member will independently
operate and maintain a separate electricity distribution system. This
Corporation and member each acknowledge that standards, rules and/or
regulations concerning the operation and maintenance of their separate
systems are different and are the product of government and industry sources
that apply separately to the two different systems, and that each will be solely
responsible for undertaking reasonable efforts to operate and maintain their
independent systems consistent with sound practices as derived from the
standards, rules and/or regulations that apply to each separately.
Section 7: Control. This Corporation and member each acknowledge that the
Corporation has no control over or the right, ability or authority to control the
electric facilities, power lines, operations or maintenance practices of the
member and that others, including the member’s own governing board,
management, member-customers and regulators, if any, control the member
and are best situated to exercise control, oversight and/or guidance of the
member’s operations and maintenance practices.

11

 Proceeding No. 18F-____E
Attachment D
Page 17 of 34
ARTICLE III
MEETINGS OF MEMBERS
Section 1: Annual Meeting. The annual meeting of the members of this
Corporation shall be held prior to September 30 of each year, and in any such
location within any state where any of the members serve, the exact date and
location to be determined by the Board of Directors. Failure to hold the
annual meeting at the designated time shall not work a forfeiture or
dissolution of this Corporation.
Section 2: Special Meetings. Special meetings of the members of this
Corporation shall be held at the place, time and date specified in the notice of
the meeting. A special meeting may be called by (a) a resolution of the Board
of Directors, upon a written request signed by any ten (10) directors, (b) by
the Chairman and President, or (c) by twenty-five percent (25%) of the
members by written petition submitted to the Chairman and President. It shall
thereupon be the duty of the Secretary to cause notice of such meeting to be
given as hereinafter provided.
Section 3: Notice of Meetings. Notice of a meeting of the members shall
state the time, date, place, and in the case of a special meeting, purpose of the
special meeting. The notice of a meeting of the members must be delivered by
the Secretary at least thirty (30) days, but no more than sixty (60) days, before
the date of the meeting, either personally, by appropriate telecommunication
methods or by mail, to each member at the direction of the Chairman and
President or the Secretary or the persons calling the meeting. If mailed, such
notice shall be deemed delivered ten (10) days after it is deposited in the
United States mail, postage paid and addressed to the member at its address as
it appears on the records of this Corporation. Failure of any member to receive
such notice shall not invalidate any action taken by the members at such
meeting.
Section 4: Delegates. Each member shall be entitled to select one of its
directors, trustees or general manager (which may, but is not required to be,
the same person as the member’s director serving on the Board), to act as the
delegate, and alternate delegate or alternate delegates, at meetings of the
members of this Corporation. Such delegate or alternate delegate(s) when so
selected shall continue to be the delegate or alternate(s), respectively, of such
member until he or she shall resign or cease to be a director, trustee or general
manager of the member or the member shall have selected a successor
delegate or alternate(s) and shall have notified the Secretary of this
Corporation by a written instrument executed in the name of the member
through its proper officer or officers. In the event any member shall fail to
select a delegate or alternate delegate(s) as herein provided or the delegate or
alternate(s) selected by such member are unable or unwilling to serve or for
12

 Proceeding No. 18F-____E
Attachment D
Page 18 of 34

any cause fail to so serve, the President of the member shall serve as its
representative and cast its vote.
Section 5: Quorum. The presence of delegates representing at least a
majority of the members shall constitute a quorum for the transaction of
business at meetings of the members. If less than a quorum is present at any
meeting, a majority of those delegates present in person may adjourn the
meeting from time to time without further notice.
Section 6: Voting. At all meetings of the members at which a quorum is
present, all questions shall be decided by a vote of a majority of the members
voting thereon except as otherwise provided by law, the Articles of
Incorporation or these Bylaws. Each member shall be entitled to only one (1)
vote upon each matter submitted to a vote at a meeting of the members. In the
event the delegate of a member is absent, or is unable or refuses to act, the
alternate delegate(s) designated by such member shall act in his or her stead
and shall cast the vote of such member. However, if both the delegate and the
alternate delegate(s) of such member are absent, or are unable or refuse to act,
then the President of such member may represent and cast the vote of such
member as provided in Section 4 of this Article. No individual may represent
more than one member.

ARTICLE IV
DIRECTORS
Section 1: General Powers. The business and affairs of this Corporation
shall be managed by a Board of Directors which shall exercise all of the
powers of this Corporation except such as are by law, the Articles of
Incorporation or these Bylaws conferred upon or reserved to the members.
Section 2: Qualifications; Removal. No person shall be eligible to become or
remain a director of this Corporation who is not a director, trustee or general
manager of a member of this Corporation. The Board of Directors may
remove any director for cause, which includes but is not limited to, a director
holding office in violation of this Section.
Section 3: Election and Certification. Except as provided in Section 4 hereof,
each member shall elect one (1) of its directors, trustees or its general
manager to serve on the Board of Directors of this Corporation. Each member
shall certify the name of such person to this Corporation by means of the
Secretary of each member promptly informing the Secretary of this
Corporation in writing of such person's name.

13

 Proceeding No. 18F-____E
Attachment D
Page 19 of 34
Section 4: Tenure of Office. Each director shall serve until his or her member
elects some other person to serve and the fact of such election is certified to
this Corporation by such member in writing; provided, however, that a person
shall be eligible to be elected a director, and shall be eligible to remain a
director, only if he or she has the qualifications set forth in these Bylaws.
Each existing director shall be deemed elected by the member of which he or
she is a director, trustee or general manager unless such director’s member
elects some other person in accordance with the provisions of Section 3 hereof
and the fact of such election is certified to this Corporation by such member in
writing.
Section 5: Vacancies. A vacancy occurring in the Board of Directors shall be
filled by the member losing representation because of the vacancy, electing
some other person in accordance with the provisions of Section 3 hereof and
certifying the fact of such election to this Corporation in writing.
Section 6: Compensation. Directors shall receive no salary for their services,
as directors, except that by resolution of the Board of Directors a fixed sum
and expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board of Directors and for attendance at each
local, state, regional, and national meeting, hearing or convention of other
organizations in which this Corporation has subscribed to membership under
Section 1 of Article XI of these Bylaws, and for attendance at other meetings,
hearings, or conventions where directors are acting on behalf of this
Corporation and within the scope of their authority as directors of this
Corporation. The purpose of authorizing directors to attend such meetings,
hearings, and conventions shall be to permit them to do and perform all acts
and things and to execute all powers which may be necessary, convenient or
appropriate to accomplish the purpose for which this Corporation is
organized.
No director shall receive compensation for serving this
Corporation in any other capacity, nor shall any close relative of a director
receive compensation for serving this Corporation, unless payment and
amount of compensation shall be specifically authorized by a vote of the
members or the service by such director or close relative shall have been
certified by the Board of Directors as an emergency measure; provided,
however, this Corporation may provide a per diem compensation and
reimbursement of out-of-pocket expenses for the Chairman and President, and
for any other officer or director of this Corporation who is specifically
authorized by the Board to undertake a specific assignment because the
Chairman and President is unable to do so, so long as such compensation and
expenses are reasonable in amount, are for services rendered to this
Corporation and are expenses incurred in connection with said services, and
that such services are in addition to services rendered as a director.
Notwithstanding the foregoing, any per diem compensation which is
14

 Proceeding No. 18F-____E
Attachment D
Page 20 of 34

authorized for additional services shall not be more than 25% greater than this
Corporation's per diem compensation for its directors.
Section 7: Action Taken Without a Meeting. Notwithstanding any other
provision hereof, any action required by law to be taken at a meeting of the
Board of Directors of this Corporation, or any action which may be taken at a
meeting of the Board of Directors of this Corporation, may be taken without
such meeting if a consent in writing, setting forth the action taken, shall be
signed by all of the directors entitled to vote with respect to the subject matter
thereof. Such consent shall have the same force and effect as a unanimous
vote of such directors.

ARTICLE V
MEETINGS OF DIRECTORS
Section 1: Regular Meetings. A regular meeting of the Board of Directors
shall be held without notice, immediately after, and at the same place as the
annual meeting of the members. Regular meetings of the Board of Directors
shall be held at least 12 times in each year at such times and places as the
Board of Directors may provide. Such regular meetings may be held without
notice other than appropriate Board action at a meeting fixing the time and
place thereof. Meetings may be conducted by telephonic or video conference.
Section 2: Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman and President or a majority of the directors,
and it shall thereupon be the duty of the Secretary to cause notice of such
meeting to be given as hereinafter provided. The Chairman and President or
the directors calling the meeting shall fix the time and place for the holding of
the meeting.
Section 3: Notice of Directors’ Meetings. Written notice of the time, place
and purpose of any special meeting of the Board of Directors shall be
delivered to each director not less than five (5) days previous thereto, either
personally, by appropriate telecommunications methods or by mail, by or at
the direction of the Secretary, or upon a default in duty by the Secretary, by
the Chairman and President or the directors calling the meeting. If mailed,
such notice shall be deemed to be delivered five (5) days after it is deposited
in the United States mail and addressed to the director at his or her address as
it appears on the records of this Corporation with postage thereon prepaid.
Section 4: Quorum. A majority of the directors shall constitute a quorum;
provided, that if less than such majority of the directors is present at said
meeting, a majority of the directors present may adjourn the meeting from
15

 Proceeding No. 18F-____E
Attachment D
Page 21 of 34
time to time; and provided further, that the Secretary shall notify any absent
directors of the time and place of such adjourned meeting. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 5: Presence of Others. The Board of Directors may, at its option,
exclude any person, other than a director, from a meeting of the Board of
Directors.

ARTICLE VI
OFFICERS
Section 1: Number. The officers of this Corporation shall be a Chairman and
President, Vice-Chairman, Secretary, Treasurer, two or more Assistant
Secretaries and such other officers as may be determined by the Board of
Directors from time to time.
Section 2: Election and Term of Office. The officers shall be elected by
secret ballot, annually by and from the Board of Directors at the meeting of
the Board of Directors held immediately after the annual meeting of the
members. If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as conveniently may be. Each officer
shall hold office until the first meeting of the Board of Directors following the
next succeeding annual meeting of the members or until such officer's
successor shall have been elected and shall have qualified. A vacancy in any
office shall be filled by the Board of Directors for the unexpired portion of the
term.
Section 3: Removal of Officers by the Board of Directors. Any officer
elected or appointed by the Board of Directors may be removed by the Board
of Directors (1) if the officer ceases to be a board member for whatever
reason, or (2) whenever in its judgment the best interest of this Corporation
will be served thereby. In addition, any director may request removal of an
officer by filing with the Secretary such a written list of reasons for removal
together with a petition signed by at least twenty-five percent (25%) of the
directors. The officer involved shall be informed in writing of the reasons at
least thirty (30) days prior to the Board meeting at which removal is to be
considered, and shall have an opportunity to be present or represented by
counsel at the meeting and to present relevant evidence, and the director or
directors seeking removal of such officer shall have the same opportunity.
Section 4: Chairman and President. The Chairman and President shall:

16

 Proceeding No. 18F-____E
Attachment D
Page 22 of 34

(a)

Be the principal executive officer of this
Corporation and, unless otherwise determined by
the members or the Board of Directors, shall
preside at all meetings of the members and the
Board of Directors;

(b)

Sign any deeds, mortgages, deeds of trust, notes,
bonds, contracts or other instruments authorized by
the Board of Directors to be executed, except in
cases in which the signing and execution thereof
shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer
or agent of this Corporation, or shall be required by
law to be otherwise signed or executed; and

(c)

In general perform all duties incident to the office
of Chairman and President and such other duties as
may be prescribed by the Board of Directors from
time to time.

Section 5: Vice-Chairman. In the absence of the Chairman and President, or
in the event of the Chairman and President's inability or refusal to act, the
Vice-Chairman shall perform the duties of the Chairman and President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chairman and President. The Vice-Chairman shall also
perform such other duties as from time to time may be assigned to the ViceChairman by the Board of Directors.
Section 6: Secretary. The Secretary shall:
(a)

See that the minutes of the meetings of the
members and of the Board of Directors are kept in
one or more books provided for the purpose;

(b)

See that all notices are duly given in accordance
with these Bylaws or as required by law;

(c)

See that the corporate seal is affixed to all
documents, the execution of which on behalf of
this Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws;

(d)

See that a register of the names and post office
addresses of all members is kept;
17

 Proceeding No. 18F-____E
Attachment D
Page 23 of 34

(e)

See that the books and records of this Corporation
are kept as required by law;

(f)

See that there is kept on file at all times at the
office of this Corporation a complete copy of the
Articles of Incorporation and Bylaws of this
Corporation containing all amendments thereto
(which copy shall always be open to the inspection
of any member), and at the expense of this
Corporation that there is forwarded a copy of the
articles and bylaws and all amendments thereto to
each member and to each delegate who requests
the same; and

(g)

In general perform all duties incident to the office
of Secretary and such other duties as from time to
time may be assigned to the Secretary by the Board
of Directors.

Section 7: Treasurer. The Treasurer shall:
(a)

Have general charge and custody of and be
generally responsible for all funds and securities of
this Corporation;

(b)

Be generally responsible for the receipt of and the
issuance of receipts for all monies due and payable
to this Corporation, and for the deposit of all such
monies in the name of this Corporation in
accordance with the provisions of these Bylaws;
and

(c)

In general perform all the duties incident to the
office of Treasurer and such other duties as from
time to time may be assigned to the Treasurer by
the Board of Directors.

Section 8: Chief Executive Officer. The Board of Directors may appoint a
Chief Executive Officer who may be, but who shall not be required to be, a
member of any member of this Corporation, and who shall perform such
duties and shall exercise such authority as the Board of Directors may from
time to time vest in such Chief Executive Officer. The Chief Executive
Officer may not serve as a director of this Corporation.

18

 Proceeding No. 18F-____E
Attachment D
Page 24 of 34

Section 9: Assistant Secretaries. The Board of Directors shall appoint at least
two Assistant Secretaries, each of whom shall be a Board member, who shall
assist the Secretary in performing the duties of that office. An Assistant
Secretary, unless otherwise directed by the Board or the Secretary, may give
all notices and attest to all documents of this Corporation in the stead of the
Secretary, reporting to the Secretary with respect to all actions taken in his or
her stead.
Section 10: Bonds of Officers. The Treasurer and any other officer or agent
of this Corporation charged with responsibility for the custody of any of its
funds or property shall (at this Corporation’s expense) give bond in such sum
and with such surety as the Board of Directors shall determine. The Board of
Directors in its discretion may also require any other officer, agent or
employee of this Corporation to give bond in such amount with such surety as
it shall determine.
Section 11: Compensation. The powers, duties and compensation of officers
and agents shall be generally determined by the Board of Directors, subject to
the provisions of these Bylaws and applicable state law with respect to
compensation for directors, and close relatives of directors.
Section 12: Reports. The officers of this Corporation shall submit at each
annual meeting of the members reports covering the business of this
Corporation for the previous fiscal year. Such reports shall set forth the
condition of this Corporation at the close of such fiscal year.
Section 13: Executive Committee. An Executive Committee shall be
established, consisting of nine (9) persons, namely the Chairman and
President, the Vice-Chairman, the Secretary, the Treasurer and two Assistant
Secretaries of this Corporation at any time duly elected by the Board of
Directors and then holding office, plus three (3) members at large elected by
and from the Board of Directors. At all times, at least two (2) Committee
members shall be directors representing former members of Plains Electric
Generation and Transmission Cooperative, Inc.; at least one (1) Committee
member shall be a director representing a member headquartered in Colorado;
at least one (1) Committee member shall be a director representing a member
headquartered in Wyoming; and at least one (1) Committee member shall be a
director representing a member headquartered in Nebraska. The Executive
Committee, subject to applicable law, shall have the power to act for and in
the place of the Board of Directors at any duly called meeting of the Board of
Directors at which a quorum is found not to be present, and also in the event
of the necessity of taking action under any circumstances that the Executive
Committee shall consider and make a formal finding that a situation exists
requiring action before a meeting of the Board of Directors can be called, but
19

 Proceeding No. 18F-____E
Attachment D
Page 25 of 34
only if a majority of the members of the Committee are present and at least
five (5) of the Committee members shall vote in agreement upon any action
taken by the Committee. It shall be the duty of the Secretary of the
Corporation to prepare minutes of all meetings and actions of the Executive
Committee, to record the same as a part of the minutes and records of the
Board of Directors, and, after each such meeting or action, to promptly
provide a copy of the minutes to each member of the Board of Directors.

ARTICLE VII
OPERATION AS A COOPERATIVE CORPORATION
Section 1: Cooperative Corporation. The Corporation and members agree that
the Corporation is and shall organize as a cooperative corporation under the
laws of the State of Colorado. No other business form arising from the
relationship between the Corporation and the member is agreed to, intended or
permitted, including without limitation partnership, joint venture, single or
joint enterprise, nor is any agency, fiduciary or similar relationship agreed to,
intended or permitted. The sole relationship between this Corporation and
each member shall be that of a cooperative corporation and member as
provided by Colorado statutory law.
Section 2: Interest or Dividends on Capital Prohibited. The Corporation
shall at all times be operated on a cooperative non-profit basis for the mutual
benefit of its members. No interest or dividends shall be paid or payable by
the Corporation on any capital furnished by its members.
Section 3: Patronage Capital in Connection With Furnishing Electric Energy.
In the furnishing of electric energy the Corporation's operations shall be so
conducted that all members will through their patronage furnish capital for the
Corporation. In order to induce patronage and to assure that the Corporation
will operate on a non-profit basis, the Corporation is obligated to account on a
patronage basis to all its members for all amounts received and receivable
from the furnishing of electric power and energy in excess of the sum of (a)
operating costs and expenses properly chargeable against the furnishing of
electric power and energy, (b) amounts required to offset any losses incurred
during the current or any prior fiscal year, and (c) adjustments to reserves or
deferred credit accounts for the purpose of stabilizing margins and rate
increases from year to year. The sum of subparagraphs (a), (b) and (c) shall be
identified as “operating costs and expenses” for purposes of this Article. All
amounts in excess of operating costs and expenses at the moment of receipt by
the Corporation are received with the understanding that they are furnished by
the members as capital and are not profit to or from the Corporation or its
operations. The Corporation is obligated to allocate by credits, to a capital
account for each member, all such amounts in excess of operating costs and
20

 Proceeding No. 18F-____E
Attachment D
Page 26 of 34

expenses. The books and records of the Corporation shall be set up and kept
in such a manner that at the end of each fiscal year the amount of capital, if
any, so furnished by each member is clearly reflected and credited in an
appropriate record to the capital account of each member, and the Corporation
shall, within a reasonable time after the close of the fiscal year, notify each
member of the amount of capital so credited to such member's account. All
such amounts credited to the capital account of any member shall have the
same status as though they had been paid to such member in cash in
pursuance of a legal obligation to do so and such member had then furnished
the Corporation corresponding amounts for capital.
All other amounts received by the Corporation from its operations in excess of
costs and expenses shall, insofar as permitted by law, be used to offset any
losses incurred during the current or any prior fiscal year; and to the extent not
needed for that purpose, allocated to its members on a patronage basis, and
any amount so allocated shall be included as a part of the capital credited to
the accounts of members, as herein provided.
Allocation units may be established by the Board of Directors on a reasonable
and equitable basis. If allocation units are established, the Board of Directors
shall adopt such reasonable and equitable accounting procedures as will, in
the Board's judgment, equitably allocate among such allocation units this
Corporation’s items of income, gain, expense and loss. The Board of
Directors may establish procedures under which a net loss incurred within an
allocation unit may be offset against the net margins earned by another
allocation unit or units and the right, if any, of such other allocation unit or
units to recoup such offset out of future net margins of the allocation unit that
incurred the net loss. The Corporation shall give reasonable notice to each
member of the effect of such offset on its capital credit allocation.
In the event of dissolution or liquidation of the Corporation, after all
outstanding indebtedness of the Corporation shall have been paid, outstanding
capital credits shall be retired without priority on a pro rata basis before any
payments are made on account of property rights of members. If, at any time
prior to dissolution or liquidation, the Board of Directors shall determine that
the financial condition of the Corporation will not be impaired thereby, the
capital then credited to members' accounts may be retired in full or in part and
such may be done by policy or otherwise.
Capital credited to the account of each member shall be assignable only on the
books of the Corporation pursuant to written instruction from the assignor and
only to successors in interest in the business or the physical assets of such
member unless the Board of Directors, acting under policies of general
application, shall determine otherwise.
21

 Proceeding No. 18F-____E
Attachment D
Page 27 of 34

The members of the Corporation, by dealing with the Corporation,
acknowledge that the terms and provisions of the Articles of Incorporation
and Bylaws shall constitute and be a contract between the Corporation and
each member and both the Corporation and the member are bound by such
contract, as fully as though each member had individually signed a separate
instrument containing such terms and provisions. The provisions of this
article of the Bylaws shall be called to the attention of each member of the
Corporation by keeping a copy of such Bylaws available for inspection by any
member in the Corporation's office.

ARTICLE VIII
DISPOSITION OF PROPERTY
This Corporation may not sell, mortgage, lease or otherwise dispose of or
encumber all or any substantial portion of its property unless such sale,
mortgage, lease or other disposition or encumbrance is authorized at a
meeting of the members thereof by the affirmative vote of not less than twothirds (2/3) of all the members of this Corporation, and unless the notice of
such proposed sale, mortgage, lease or other disposition or encumbrance shall
have been contained in the notice of the meeting. It is understood, however,
that this Article shall not apply to a merger or consolidation of this
Corporation with any other cooperative corporation, and it is further
understood that, notwithstanding anything herein contained, the Board of
Directors of this Corporation, without the authorization by the members
thereof, shall have full power and authority to authorize the execution and
delivery of a mortgage or mortgages or a deed or deeds of trust upon, or the
pledging or encumbering of, any or all the property, assets, rights, privileges,
licenses, franchises, and permits or other things of value of this Corporation,
whether acquired or to be acquired and wherever situated, as well as the
revenues and income therefrom, all upon such terms and conditions as the
Board of Directors shall determine, to secure any indebtedness of this
Corporation.

ARTICLE IX
SEAL
The corporate seal of this Corporation shall be in such form as may be
approved by the Board of Directors from time to time.

22

 Proceeding No. 18F-____E
Attachment D
Page 28 of 34

ARTICLE X
FINANCIAL TRANSACTIONS
Section 1: Contracts. Except as otherwise provided in these Bylaws, the
Board of Directors may authorize any officer or officers, agent or agents to
enter into any contract or execute and deliver any instrument in the name and
on behalf of this Corporation, and such authority may be general or confined
to specific instances.
Section 2: Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, and all notes, bonds or other evidences of indebtedness
issued in the name of this Corporation shall be signed by such officer or
officers, agent or agents, employee or employees of this Corporation and in
such manner as shall from time to time be determined by resolution of the
Board of Directors.
Section 3: Deposits. All funds of this Corporation shall be deposited from
time to time to the credit of this Corporation in such financial institutions
selected by the Board of Directors. Such financial institutions must have
deposits insured. In addition, funds of this Corporation also may be deposited
in such investment securities or funds as the Board of Directors may elect.
Section 4: Fiscal Year. The fiscal year of this Corporation shall begin on the
first day of January of each year and shall end on the 31 st day of December of
the same year.

ARTICLE XI
MISCELLANEOUS
Section 1: Membership in Other Organizations. This Corporation may
become a member of or purchase stock in any other organization without an
affirmative vote of the members, upon an express determination by the Board
of Directors that such membership or purchase of stock is in the best interests
of this Corporation.
Section 2: Interested Transactions. No contract or other transaction between
this Corporation and a member shall be affected or invalidated by reason of
the mere fact that any one (or more) of the Board members, officers or other
members of the management of this Corporation is (or are) interested in or is
(or are) a member(s), trustee(s), officer(s), or employee(s) of such member or
of a cooperative corporation, nonprofit corporation, partnership, joint venture,
trust, unincorporated association or other entity in which the member is
interested or is (or are) a patron(s) or interested in a patron(s) of such member.
23

 Proceeding No. 18F-____E
Attachment D
Page 29 of 34
Such an interested Board member may be counted for the purpose of
determining the presence of a quorum, and he or she may participate in any
discussion and the voting relating to such a contract or other transaction.
Nothing herein shall affect, however, that Board member’s responsibility to
perform his or her duties in good faith, in a manner the Board member
believes to be not opposed to the best interest of this Corporation and
otherwise in accordance with applicable law.
Section 3: Waiver of Notice. Any member, delegate or director may waive in
writing any notice of a meeting required to be given by these Bylaws. The
attendance of a member, delegate or director at any meeting shall constitute a
waiver of notice of such meeting by such member, delegate, or director,
except in case a member, delegate, or director shall attend a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting has not been lawfully called or convened.
Section 4: Accounting System and Reports. The Board of Directors shall
cause to be established and maintained a complete accounting system which,
among other things, shall conform to Generally Accepted Accounting
Principles (GAAP) and to the applicable laws and rules and regulations of any
regulatory body having jurisdiction and applicable provisions of this
Corporation’s loan contracts. The Board of Directors also shall, after the
close of each fiscal year, cause to be made a full and complete audit of the
accounts, books and financial condition of this Corporation as of the end of
each fiscal year. Such audit reports shall be submitted to the members at the
next following annual meeting.
Section 5: Indemnification:
(a)

Officers’, Board Members’ and Employee’s
Indemnification. Subject to paragraphs (c), (d) and
(e) of this Section 5, this Corporation shall
indemnify any person who is or was a Board
member, Officer or employee of this Corporation
and any person who, while a Board member or
Officer of this Corporation, is or was serving at the
request of this Corporation as a director, Officer,
partner, employee or agent of another cooperative
or of a foreign or domestic corporation or nonprofit
corporation, partnership, joint venture, trust,
unincorporated enterprise or employee benefit plan
or trust, and who is made a party to any action,
suit or proceeding, civil or criminal, by reason of
holding or having held such office or position.

24

 Proceeding No. 18F-____E
Attachment D
Page 30 of 34

(b)

Agents’ Indemnification.
Subject to paragraphs
(c), (d) and (e) of this Section 5, this Corporation
may indemnify any person, other than a Board
member, an Officer or employee acting as such,
who has or had an agency relationship with this
Corporation and who is made a party to any action,
suit or proceeding, civil or criminal, by reason of
service during the course of such relationship,
including service at the request of this Corporation
as a trustee, Officer, partner, employee or agent of
another cooperative or of a foreign or domestic
corporation or nonprofit corporation, partnership,
joint venture, trust, unincorporated association,
other incorporated or unincorporated enterprise or
employee benefit plan or trust.

(c)

Indemnification Disqualification.
A Board
member, Officer or other person shall not be
indemnified in connection with a proceeding by or
in the right of this Corporation in which he or she
was adjudged liable to this Corporation. A Board
member, Officer or other person shall, further, not
be indemnified in connection with any proceeding
charging improper personal benefit derived by him
or her, whether or not involving action in an
official capacity, in which he or she was adjudged
to be liable on the basis that the personal benefit
was improperly derived. There shall be no
indemnification unless the Board finds that the
indemnitee:
(i)

conducted himself or herself in good faith;

(ii)

reasonably believed (I) in the case of
conduct in an official capacity, that his or
her conduct was in the best interests of
this Corporation, and (II) in all other
cases, that his or her conduct was at least
not opposed to the best interests of this
Corporation; and

(iii)

in the case of any criminal proceeding,
had no reasonable cause to believe the
person’s conduct was unlawful.
25

 Proceeding No. 18F-____E
Attachment D
Page 31 of 34

Termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, be
determinative that the person is disqualified from
receiving indemnification.
(d)

(e)

Indemnification Amount. Indemnification shall,
pursuant to paragraph (a), and may pursuant to
paragraph (b), be made against judgments,
penalties, fines, settlements and compromises, cost
and expenses, including attorneys’ fees, reasonably
incurred by or on behalf of the indemnitee in
connection with the defense of such proceeding.
Reasonable expenses incurred by a Board member,
Officer or other person who is a party to a
proceeding may be paid or reimbursed by this
Corporation in advance of the final disposition of
such proceeding if:
(i)

such person furnishes this Corporation
with a written affirmation of his or her
good faith belief that he or she is not
disqualified
from
receiving
indemnification under paragraph (c) of
this Section;

(ii)

such person furnishes to this Corporation
a written undertaking by or on behalf of
the person to repay such amount if it shall
ultimately be determined that he or she is
disqualified or, in the case of a person
other than a Board member or an Officer
acting as such, not fully indemnified in
the Board’s discretion; and

(iii)

a determination is made that the facts then
known to those making the determination
would not preclude indemnification.

Indemnification Procedure. No indemnification
under paragraphs (a) and (b) of this Section 5 shall
be made unless authorized in the specific case after
a
determination
has
been
made
that
indemnification is permissible in accordance with
26

 Proceeding No. 18F-____E
Attachment D
Page 32 of 34

applicable state law and these Bylaws. Such
determination shall be made:
(i)

by the Board by a majority vote of a
quorum of Board members not at the time
parties to the proceeding;

(ii)

if such a quorum cannot be attained, by a
majority vote of a committee of the Board
duly designated to act in the matter by a
majority vote of the full Board, in which
designated Board members who are
parties may participate, and consisting
solely of two or more Board members not
at the time parties to the proceeding;

(iii)

by special legal counsel, selected by the
Board or a committee thereof by vote as
set forth in subparagraphs (i) or (ii) of this
paragraph (e) or, if the requisite quorum
of the full Board cannot be obtained
therefor and such committee cannot be
established, by a majority vote of the full
Board, in which selection Board members
who are parties may participate; or

(iv)

pursuant to a resolution of a majority of
the members present and voting at any
annual or special meeting.

Authorization of indemnification and determination as to the amount thereof
shall be made in the same manner as the permissibility determination, except
that if the permissibility determination is made by special legal counsel,
authorization and amount determination shall be made in a manner specified
in paragraph (e)(iii) of this Section 5 for the selection of such counsel.

ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended or repealed by the members of this
Corporation at any regular or special meeting provided that the notice of such
meeting shall have contained a copy of the proposed alteration, amendment or
repeal. At any such meeting, the proposed alteration, amendment or repeal
27

 Proceeding No. 18F-____E
Attachment D
Page 33 of 34
may be amended by the affirmative vote of a majority of the members of this
Corporation. These Bylaws may also be altered, amended or repealed by the
affirmative vote of not less than two-thirds (2/3) of the members of the Board
of Directors at any regular or special meeting of said Board, provided that
written notice of the proposed alteration, amendment or repeal shall be mailed
to each member of the Board of Directors and each member of this
Corporation not less than forty-five (45) days before the date of such meeting.
The directors, at such meeting, may amend the proposed alteration,
amendment or repeal, but the same shall not become effective until written
notice thereof has been mailed to each member of this Corporation not less
than forty-five (45) days before the effective date thereof. At any time prior
to the date of such meeting or prior to the effective date of such amended
alteration, amendment or repeal, any ten (10) or more members of this
Corporation may file a written resolution with the Secretary of this
Corporation in protest of the proposed alteration, amendment or repeal of
these Bylaws or of the amended alteration, amendment or repeal of these
Bylaws, and in such event, said alteration, amendment or repeal of these
Bylaws, or said amended alteration, amendment or repeal of these Bylaws,
shall be of no validity unless approved by the members of this Corporation as
heretofore provided.
Any ten (10) or more members of this Corporation may file a written
resolution with the Secretary of this Corporation proposing an alteration,
amendment or repeal of these Bylaws, and upon such resolutions being filed,
the proposed alteration, amendment or repeal shall be placed upon the agenda
of the next regular meeting of the Board of Directors for consideration and
determination by the Board of Directors in the manner above described. If the
determination of the Board of Directors is in the negative, the proposed
alteration, amendment or repeal shall be placed upon the agenda of the next
regular or special meeting of the members of this Corporation and submitted
to the members of this Corporation for consideration and determination at
such meeting. If the aforesaid resolution is not received by the Secretary of
this Corporation in time sufficient to permit such resolution to be timely
considered and determined by the Board of Directors prior to the next regular
or special meeting of the members of this Corporation, then the proposal shall
be noticed and submitted directly to the members of this Corporation in the
manner just described.

ARTICLE XIII
MERGER OR CONSOLIDATION
In the event of a merger or consolidation of two or more members of this
Corporation, any member which thereby will cease to exist may, if it wishes,
prior to such time, transfer to the surviving or new member its right to elect a
28

 Proceeding No. 18F-____E
Attachment D
Page 34 of 34

director to the Board of Directors of this Corporation, and such right shall
continue to exist, if the transferee member so wishes, for a period of not to
exceed three (3) years from the date of the merger or consolidation.
If a member which will cease to exist chooses to transfer its right to elect a
director to the Board of Directors of this Corporation to the surviving or new
member, the transferee member shall have the right to elect a person to fill
such position, if the transferee member so wishes, for a period of not to
exceed three (3) years from the date of the merger or consolidation.
Each person so elected shall be entitled to one (1) vote and no more upon each
matter submitted to a vote at a meeting of the Board of Directors. In
situations where the presence or vote of a majority of directors is required, the
presence of each such person shall be counted in determining whether or not a
quorum exists, and the vote of each such person shall be counted in
determining whether or not the necessary vote has been obtained.
Notwithstanding the foregoing, in the event of a consolidation of two or more
members of this Corporation, and in the event one or more of such members
transfers its right to elect a director to the Board of Directors of this
Corporation to the new member, the new member will not have more votes, in
total, than the number of rights assigned to it by the member(s) which will
cease to exist.
In the event a member does not merge into or consolidate with another
member, but instead sells all or substantially all of its assets to another
member and thereupon ceases to exist, the foregoing provisions of this Article
shall apply to such transaction.
  

29