Common use of Management by Directors Clause in Contracts

Management by Directors. (i) The Managing Member hereby delegates the full and entire management of the business and affairs of the Company to the Board of Directors which shall have and may exercise all of the powers that may be exercised or performed by the Company. Except where the approval of the Members is expressly required by this Agreement or by nonwaivable provisions of the Delaware Act, the Board of Directors shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the management of the Company’s business. The Board of Directors shall have the further power to delegate any and all authority to such officers, including, without limitation, the officers described in Section 10, employees, agents and representatives of the Company as it may from time to time deem appropriate. (ii) Without limiting the generality of Section 9, the Board of Directors shall have full power and authority to authorize the Company: (A) to acquire property from any Person; the fact that a Member or Director is directly or indirectly affiliated or connection with any such Person shall not prohibit the Company from dealing with that Person; (B) to borrow money for the Company from banks, other lending institutions, any of the Members or Directors, or Affiliates of any of the Members or Directors on such terms as they deem appropriate, and in connection therewith, to hypothecate, encumber and grant security interests in the assets of the Company to secure repayment of the borrowed sums; (C) to purchase liability and other insurance to protect the Company’s property and business; (D) to hold and own any real and/or personal properties in the name of the Company; (E) to invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper or similar type investments; (F) to execute on behalf of the Company all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the acquisition, mortgage or disposition of the Company’s property; assignments; bills of sale; leases; partnership agreements; and any other instruments or documents necessary, in the opinion of the Directors, to the business of the Company; (G) to employ accountants, legal counsel, managing agents or other experts to perform services for the Company, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act, and to compensate them from the Company funds; (H) to retain and compensate employees and agents generally, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act; (I) to enter into any and all other agreements on behalf of the Company, with any other Person for any purpose; and (J) to do and perform all other acts as may be necessary or appropriate to the conduct of the Company’s business. (iii) No Member, by reason of such Member’s status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions herein specified to be voted on or approved by such Member. (iv) Notwithstanding anything herein to the contrary the Board of Directors shall not authorize, and the Company shall not enter into, any agreement, transaction or arrangement with any Member or any other affiliate of the Company, or any other Person who is an affiliate of any Member or any other affiliate of the Company, unless such agreement, transaction or arrangement is completed on an arms-length basis on terms no less favorable to the Company than it could otherwise obtain from an independent, unrelated third party; provided, however, that this Section 9 shall not apply to any transaction with any Person the majority of whose equity interest is owned, directly or indirectly, in the aggregate by the Company and/or Sunbeam, L.P., a Delaware Limited Partnership.

Management by Directors. The Company shall be managed by "managers" (ias such term is used in the Act) The Managing according to the remaining provisions of this Article VII and, except with respect to certain consent or approval requirements expressly provided for in this Agreement, no Member hereby delegates by virtue of having the full and entire status of a Member shall have any management of power over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company. The "managers" are referred to as "Directors" throughout this Agreement. The business and affairs of the Company shall be managed by the Directors appointed in accordance with Section 7.2 and acting exclusively through the Board of Directors which of the Company (the "Board of Directors") in accordance with this Agreement. No Director in his or her individual capacity shall have and may exercise the authority to manage the Company or to approve matters relating to, or otherwise to bind the Company, such powers being reserved to all of the powers that may be exercised or performed by the Company. Except where the approval of the Members is expressly required by this Agreement or by nonwaivable provisions of the Delaware Act, Directors acting exclusively through the Board of Directors and to such Officers and other agents of the Company designated by the Board. Under the direction of the Board of Directors, the day-to-day activities of the Company shall have full and complete authoritybe conducted on the Company's behalf by the Officers, power and discretion to manage and control the business, affairs and properties who shall be agents of the Company, . In addition to make all decisions regarding those matters, the powers that now or hereafter can be granted under the Act and to perform any and all other acts or activities customary or incident to the management powers granted under any other provision of the Company’s business. The Board of Directors shall have the further power to delegate any and all authority to such officers, including, without limitation, the officers described in Section 10, employees, agents and representatives of the Company as it may from time to time deem appropriate. (ii) Without limiting the generality of Section 9this Agreement, the Board of Directors shall have full power and authority to authorize the Company: (A) to acquire property from any Person; the fact that a Member or Director is directly or indirectly affiliated or connection with any such Person shall not prohibit the Company from dealing with that Person; (B) to borrow money for the Company from banks, other lending institutions, any of the Members or Directors, or Affiliates of any of the Members or Directors do all things on such terms as they the Board of Directors may deem appropriate, and in connection therewith, to hypothecate, encumber and grant security interests in the assets of the Company to secure repayment of the borrowed sums; (C) to purchase liability and other insurance to protect the Company’s property and business; (D) to hold and own any real and/or personal properties in the name of the Company; (E) to invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper or similar type investments; (F) to execute on behalf of the Company all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the acquisition, mortgage or disposition of the Company’s property; assignments; bills of sale; leases; partnership agreements; and any other instruments or documents necessary, in the opinion of the Directors, to the business of the Company; (G) to employ accountants, legal counsel, managing agents or other experts to perform services for the Company, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act, and to compensate them from the Company funds; (H) to retain and compensate employees and agents generally, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act; (I) to enter into any and all other agreements on behalf of the Company, with any other Person for any purpose; and (J) to do and perform all other acts as may be necessary or appropriate to conduct, or cause to be conducted, the conduct business and affairs of the Company’s businessCompany in accordance with the terms of this Agreement. (iii) No Member, by reason of such Member’s status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions herein specified to be voted on or approved by such Member. (iv) Notwithstanding anything herein to the contrary the Board of Directors shall not authorize, and the Company shall not enter into, any agreement, transaction or arrangement with any Member or any other affiliate of the Company, or any other Person who is an affiliate of any Member or any other affiliate of the Company, unless such agreement, transaction or arrangement is completed on an arms-length basis on terms no less favorable to the Company than it could otherwise obtain from an independent, unrelated third party; provided, however, that this Section 9 shall not apply to any transaction with any Person the majority of whose equity interest is owned, directly or indirectly, in the aggregate by the Company and/or Sunbeam, L.P., a Delaware Limited Partnership.

Management by Directors. (ia) The Managing Member hereby delegates Company shall be managed by a Board of Directors (the full “Board”) in accordance with the Act and entire the provisions of this Agreement, and no Member, by virtue of having the status of a Member, shall have any management of power over the business and affairs of the Company or any actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, nor shall any Member in his or her capacity as a Member, be entitled to vote on any matter other than as specifically required by the Act or as expressly set forth in this Agreement, in which case each Member shall be entitled to a number of votes equal to such Member’s Company Percentage Interest at the time of such vote. The business and affairs of the Company shall be managed by the Directors elected in accordance with this Section 6.1 acting exclusively through the Board in accordance with the Act and this Agreement, except as expressly delegated to any other Person by the Board or this Agreement. No Director shall be permitted to take any action in the name of Directors which the Company without the prior approval of the Board or the Members as required by this Agreement, nor shall any Director have and may exercise all of any actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company unless authorized by the Board. In addition to the powers that may now or hereafter can be exercised or performed by granted under the Company. Except where the approval Act and all other powers granted under any other provision of the Members is expressly required by Act or this Agreement or by nonwaivable provisions of (and subject to the Delaware Actterms and conditions set forth herein), the Board of Directors shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the management of the Company’s business. The Board of Directors shall have the further power to delegate any and all authority to such officers, including, without limitation, the officers described in Section 10, employees, agents and representatives of the Company as it may from time to time deem appropriate. (ii) Without limiting the generality of Section 9, the Board of Directors shall have full power and authority to authorize the Company: (A) to acquire property from any Person; the fact that a Member or Director is directly or indirectly affiliated or connection with any such Person shall not prohibit the Company from dealing with that Person; (B) to borrow money for the Company from banks, other lending institutions, any of the Members or Directors, or Affiliates of any of the Members or Directors on such terms as they deem appropriateauthority, and in connection therewithis hereby authorized and empowered by the Members, to hypothecate, encumber on behalf and grant security interests in the assets of the Company to secure repayment of the borrowed sums; (C) to purchase liability and other insurance to protect the Company’s property and business; (D) to hold and own any real and/or personal properties in the name of the Company; , to (Ei) do all things on such terms as they may deem necessary or appropriate to invest any Company funds temporarily (by way of example but not limitation) in time depositsconduct, short-term governmental obligationsor cause to be conducted, commercial paper or similar type investments; (F) to execute on behalf the business and affairs of the Company all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; mortgages or deeds of trust; security agreements; financing statements; documents providing for the acquisition, mortgage or disposition of the Company’s property; assignments; bills of sale; leases; partnership agreements; and any other instruments or documents necessary, in the opinion of the Directors, (ii) subject to the business of the Company; (G) to employ accountantsterms and conditions set forth in this Agreement, legal counsel, managing agents delegate any and all authority or other experts to perform services for the Company, and to define their duties and authority, which may include authority responsibility granted to the Members Board pursuant to this Agreement to one or Directors under more other Persons, including to any agents, officers or employees of the ActBoard or the Company. Notwithstanding anything to the contrary herein or in any other agreement, all material matters and decisions with respect to compensate them from the Company funds; (H) to retain and compensate employees and agents generally, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act; (I) to enter into any and all other agreements on behalf Subsidiary of the Company, with including each of the matters set forth on Exhibit C shall require the approval of the Board, and Cinergy and the Company shall not permit any Subsidiary of the Company to take any action that requires such approval or any other Person for approval required hereunder prior to such approval of the Board or any purpose; andother approval required hereunder being obtained. (Jb) to do Except as otherwise provided by Section 6.1(c), (i) upon the First Closing and perform during the term of this Agreement until the Second Closing, the Board shall consist of nine (9) Directors, of which one (1) Director shall be designated by the New Investor Group (each, a “New Investor Designee”) and eight (8) Directors shall be designated by Cinergy (each, a “Cinergy Designee”); and (ii) upon the Second Closing and during the term of this Agreement thereafter, the Board shall consist of ten (10) Directors, of which two (2) Directors shall be New Investor Designees and eight (8) Directors shall be Cinergy Designees. Each of the Members shall take all other acts actions as may be reasonably necessary or appropriate to cause the Board to consist of such number of Cinergy Designees and New Investor Designees. Prior to the conduct Second Closing, in the event that the New Investor Designee is unable to attend any meeting of the Company’s businessBoard or otherwise is unavailable to act as a member of the Board for purposes of an action by the Board, the New Investor Designee may designate its Board Observer as an alternate Director in the place and stead of the New Investor Designee for purposes of such meeting or other action, so long as the New Investor Designee provides the Cinergy Designees notice either in writing, electronically via email or telephonically (if telephonically, confirmed promptly in writing by at least one Cinergy Designee) at least one (1) Business Day prior to such meeting or action. If the New Investor Designee designates its Board Observer as an alternate Director pursuant to the immediately preceding sentence, then such Board Observer shall have all rights and obligations of the New Investor Designee for purposes of such meeting or other action. (iii) No Member, by reason of such Member’s status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions herein specified to be voted on or approved by such Member. (ivc) Notwithstanding anything herein to the contrary contrary, (i) if at any time the Board aggregate Company Percentage Interest of the New Investor Group decreases to less than the Requisite Two-Director Appointment Percentage, then the New Investor Group shall thereafter only have the right to designate one (1) New Investor Designee and (ii) if at any time the aggregate Company Percentage Interest of the New Investor Group decreases to less than the Requisite Director Appointment Percentage, then New Investor Group shall cease to have any right to designate any Directors pursuant to this Section 6.1 and, in each case of (i) and (ii) the total number of Directors constituting the entire Board shall be adjusted accordingly. Each of the Members shall take all actions as may be reasonably necessary to implement the foregoing changes as promptly as practicable, including voting to remove or causing the resignation of the appropriate Director and voting to decrease the size of the Board. (d) Notwithstanding any other provision of this Agreement, the Directors and Members agree that: (i) to the fullest extent permitted by Section 18-1101(c) of the Act, the Directors shall have the same fiduciary duties to the Company as directors of a corporation incorporated under the Delaware General Corporations Law. Except to the extent elimination or limitation of liability would not be permitted by applicable Law if the Company were a corporation incorporated under the Delaware General Corporations Law, no Director shall be personally liable to the Company or its Members for monetary damages for any breach of fiduciary duty in such capacity. Any repeal or modification of this Section 6.1(d)(i) by the Members of the Company shall not authorizeadversely affect any right or protection of a Director existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification; and (ii) each Officer (in such Person’s capacity as an officer) shall have the same fiduciary duties that an officer of the Company would have if the Company were a corporation incorporated under the Delaware General Corporations Law, and the Company and its Members shall not enter into, any agreement, transaction or arrangement with any Member or any other affiliate have the same rights and remedies in respect of the Company, or any other Person who is an affiliate of any Member or any other affiliate of the Company, unless such agreement, transaction or arrangement is completed on an arms-length basis on terms no less favorable to duties as if the Company than it could otherwise obtain from an independentwere a corporation incorporated under the Delaware General Corporations Law and the Members were its stockholders. (e) Directors, unrelated third party; providedas such, however, that this Section 9 shall not apply to any transaction receive reimbursement for their reasonable and out-of-pocket expenses incurred in connection with any Person the majority of whose equity interest is owned, directly or indirectly, in the aggregate by the Company and/or Sunbeam, L.P., a Delaware Limited Partnershiptheir services as Directors.

Management by Directors. The Company shall be managed by a board of Directors (ithe "Board") The Managing Member hereby delegates who shall be "managers" (as such term is defined in the full and entire Delaware Act) according to this Article 7 and, except with respect to certain consent or approval requirements provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management of power over the business and affairs of the Company or actual or apparent authority to the Board of Directors which shall have and may exercise all of the powers that may be exercised enter into contracts on behalf of, or performed by to otherwise bind, the Company. Except where as described in the approval preceding sentence, the business and affairs of the Members is expressly required Company shall be managed by the Directors elected in accordance with Section 7.2 acting exclusively through the Board in accordance with this Agreement or by nonwaivable provisions Agreement. Under the direction of the Board, the day-to-day activities of the Company shall be conducted on the Company's behalf by the executive officers, who shall be agents of the Company. In addition to the powers that now or hereafter can be granted under the Delaware ActAct and to all other powers granted under any other provision of this Agreement, the Board of Directors shall have full and complete authority, power the executive officers (subject to Article 8 and discretion to manage and control the business, affairs and properties direction of the Company, to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the management of the Company’s business. The Board of Directors shall have the further power to delegate any and all authority to such officers, including, without limitation, the officers described in Section 10, employees, agents and representatives of the Company as it may from time to time deem appropriate. (iiBoard) Without limiting the generality of Section 9, the Board of Directors shall have full power and authority to authorize the Company: (A) to acquire property from any Person; the fact that a Member or Director is directly or indirectly affiliated or connection with any such Person shall not prohibit the Company from dealing with that Person; (B) to borrow money for the Company from banks, other lending institutions, any of the Members or Directors, or Affiliates of any of the Members or Directors do all things on such terms as they may deem appropriatenecessary or appropriate to conduct, or cause to be conducted, the business and in connection therewith, to hypothecate, encumber and grant security interests in the assets of the Company to secure repayment of the borrowed sums; (C) to purchase liability and other insurance to protect the Company’s property and business; (D) to hold and own any real and/or personal properties in the name affairs of the Company; (E) to invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper or similar type investments; (F) to execute on behalf of the Company all instruments and documents, including, without limitation, checks; drafts; notes (i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other negotiable liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations; (ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company; (iii) the merger or other combination or conversion of the Company with or into another person; (iv) the use of the assets of the Company (including cash on hand) for any purpose consistent with the terms of this Agreement and the repayment of obligations of the Company; (v) the negotiation, execution and performance of any contracts, conveyances or other instruments; mortgages (vi) the distribution of Company cash; (vii) the selection, engagement and dismissal of executive officers, employees and agents, outside attorneys, accountants, engineers, consultants and contractors and the determination of their compensation and other terms of employment or deeds hiring; (viii) the maintenance of trust; security agreements; financing statements; documents providing such insurance for the acquisition, mortgage benefit of the Company as it deems necessary or appropriate; (ix) the acquisition or disposition of assets; (x) the Company’s propertyformation of, or acquisition of assets of or an interest in, or the contribution of property to, any person; assignments; bills (xi) the control of sale; leases; partnership agreements; any matters affecting the rights and any other instruments or documents necessary, in the opinion of the Directors, to the business of the Company; (G) to employ accountants, legal counsel, managing agents or other experts to perform services for the Company, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act, and to compensate them from the Company funds; (H) to retain and compensate employees and agents generally, and to define their duties and authority, which may include authority granted to the Members or Directors under the Act; (I) to enter into any and all other agreements on behalf obligations of the Company, with any other Person for any purpose; and (J) to do including the commencement, prosecution and perform all other acts as may be necessary defense of actions at law or appropriate to in equity and otherwise engaging in the conduct of litigation and the Company’s business. incurring of legal expense and the settlement of claims and litigation; (iiixii) No Member, by reason the indemnification of such Member’s status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions herein specified to be voted on or approved by such Member. (iv) Notwithstanding anything herein person against liabilities and contingencies to the contrary the Board of Directors shall not authorizeextent permitted by law and this Agreement and (xiii) issue additional Interests, and the Company shall not enter into, any agreement, transaction or arrangement with any Member or any other affiliate of the Company, or any other Person who is an affiliate of any Member or any other affiliate of the Company, unless such agreement, transaction or arrangement is completed on an arms-length basis on terms no less favorable to the Company than it could otherwise obtain from an independent, unrelated third party; provided, however, that this Section 9 shall not apply to any transaction with any Person the majority of whose equity interest is owned, directly or indirectly, in the aggregate by the Company and/or Sunbeam, L.P., a Delaware Limited Partnershipas provided herein.