OPERATING AGREEMENT OF CLECO POWER LLC (Revised effective October 1, 2008)
Exhibit
3.2
OF
(Revised
effective October 1, 2008)
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Section
1.
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Formation
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1
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Section
2.
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Principal
Place of Business
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1
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Section
3.
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Other
Business of Members
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1
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Section
4.
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Accounting
and Reports for the Company
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1
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a.
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Records
and
Accounting
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1
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b.
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Access
to
Records
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1
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c.
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Outside
Consultants
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1
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Section
5.
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Membership
Interests and Capital Accounts
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2
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a.
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Membership
Interests and
Organization
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2
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b.
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Admission
of Additional
Members
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2
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c.
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Certificates
for Membership
Interest
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2
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d.
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Addition
to or Withdrawal of Capital
Contributions
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2
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Section
6.
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Member
Meetings
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2
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a.
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Place
of Holding
Meetings
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2
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b.
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Quorum
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2
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c.
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Adjournments
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2
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d.
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Annual
Meeting
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2
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e.
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Special
Meetings
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3
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f.
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Conduct
of
Meetings
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3
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g.
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Voting
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4
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h.
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Proxies
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4
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i.
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Notice
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5
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j.
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Consents
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5
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Section
7.
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Management
and Control of the Company
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5
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a.
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Management
of the Company by
Managers
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5
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b.
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Classification
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5
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c.
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Nominations
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5
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d.
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Qualifications;
Declaration of
Vacancy
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5
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e.
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Removal
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6
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x.
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Xxxxxx
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7
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g.
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Filling
of
Vacancies
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7
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h.
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Annual
and Regular
Meetings
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7
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i.
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Special
Meetings
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8
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j.
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Place
of Meetings; Telephone
Meetings
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8
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k.
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Quorum
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8
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l.
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Compensation
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8
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m.
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Committees
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8
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n.
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Consents
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8
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Section
8.
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Officers
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9
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a.
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Election,
Tenure and
Compensation
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9
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x.
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Xxxxxx
and Duties of the Chairman of the Board of
Managers
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9
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i
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x.
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Xxxxxx
and Duties of
President
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9
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x.
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Xxxxxx
and Duties of Vice
President
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9
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e.
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Power
and Duties of
Secretary
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9
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x.
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Xxxxxx
and Duties of
Treasurer
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10
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g.
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Delegation
of
Duties
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10
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h.
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Removal
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10
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Section
9.
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Committees
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10
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a.
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Executive,
Audit, Compensation and Nominating/Governance Committees
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10
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x.
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Xxxxxx
and Duties of the Executive
Committee
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10
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x.
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Xxxxxx
and Duties of the Audit
Committee
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10
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x.
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Xxxxxx
and Duties of the Compensation
Committee
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11
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d.(1)
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Powers
and Duties of the Nominating/Governance
Committee
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11
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e.
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Meetings
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11
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f.
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Compensation
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11
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Section
10.
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Profits
or Losses
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11
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Section
11.
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Distributions
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11
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Section
12.
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Dissolution
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11
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a.
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Events
Causing
Dissolution
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11
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b.
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Winding
Up the
Company
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11
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c.
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Gains
or Losses in Winding
Up
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12
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Section
13.
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Indemnity
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12
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a.
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Right
to Indemnification –
General
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12
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b.
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Certain
Provisions Respecting Indemnification for and Advancement of
Expenses
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12
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c.
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Procedure
for Determination of Entitlement to
Indemnification
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13
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d.
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Presumptions
and Effect of Certain
Proceedings
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14
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e.
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Right
of Claimant to Bring
Suit
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14
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f.
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Non-Exclusivity
and Survival of
Rights
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15
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g.
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Definitions
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16
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Section
14.
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Notices
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17
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a.
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Manner
of Giving
Notice
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17
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b.
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Waiver
of
Notice
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17
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Section
15.
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General
Provisions
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17
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a.
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Choice
of
Law
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17
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b.
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Binding
Effect
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17
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c.
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Gender
and
Plurality
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17
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d.
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Captions
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17
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e.
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Severability
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17
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f.
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Integration
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18
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ii
OF
THIS OPERATING AGREEMENT (this
“Agreement”), effective as of the 13th day of December, 2000, is entered into by
and between Cleco Power LLC, a Louisiana limited liability company (the
“Company”), organized pursuant to Title 12, Chapter 22 of the Louisiana Revised
Statutes, the Louisiana Limited Liability Company Law (the “LaLLCL”), and Cleco
Corporation, a Louisiana corporation, the Company’s sole member on the date
hereof (the “Initial Member”), who agree as follows:
Section
1. Formation. The
Initial Member executed the Articles of Organization (the “Articles”) of the
Company on the 12th day of
December, 2000, which Company was formed under the provisions of the LaLLCL and
other applicable law, as amended. Pursuant to the LaLLCL, the Initial
Member and the Company hereby adopt an Operating Agreement to govern and control
the contractual relationship between them. Accordingly, the rights
and liabilities of the Members (as hereinafter defined) and the Company shall be
as provided herein. These rights and liabilities supplement and are
in addition to the rights set forth in the Articles.
Section
2. Principal
Place of Business. Both the registered office in Louisiana and
the principal business office of the Company (the “Principal Business Office”)
shall be located at 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, 00000, or at
such other location as may be designated by the Members from time to
time.
Section
3. Other
Business of Members. The Members may engage in and/or possess
interests in other business ventures of every nature and description,
independently or with others; and the Company shall not have any rights by
virtue of this Agreement or the existence of this Company in or to such ventures
or to the income or profits derived therefrom.
Section
4. Accounting
and Reports for the Company.
a. Records
and Accounting. The books and records of the Company shall be
kept, and the financial position and the results of its operations recorded, in
accordance with the accounting methods selected by the Members from time to
time, and if not so selected, the books and records shall be maintained in
accordance with generally accepted accounting principles consistently
applied. The books and records of the Company shall reflect all the
Company’s transactions and shall be appropriate and adequate for the Company’s
business. The accounting year of the Company for financial reporting
and for federal income tax purposes shall be the calendar year.
b. Access to
Records. All books, records, files, securities and other
documents or information maintained by the Company shall be maintained at the
Principal Business Office or at any other office of the Company chosen by the
Members.
c. Outside
Consultants. The Company may obtain the services of outside
accountants, attorneys and other consultants.
1
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Section
5.
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Membership
Interests and Capital
Accounts.
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a. Membership
Interests and Organization. Exhibit A to this Agreement states
the initial interest of the Initial Member (the “Membership Interest”) in the
Company, and the initial contribution of cash or property by such Initial
Member.
b. Admission
of Additional Members. The Members may, by unanimous vote,
admit to the Company additional members (the Initial Member and additional
members, if any, collectively the “Members”, individually a
“Member”). Any additional Members shall execute an appropriate
supplement to this Agreement to be bound by the terms and shall execute such
other documents as the board of managers deems necessary or advisable.
c. Certificates
for Membership Interest. The Membership Interests shall not be
represented by any certificate of membership or other evidence of membership
other than the Articles and this Agreement.
d. Addition
to or Withdrawal of Capital Contributions. The Members shall
not have the right to withdraw their capital contribution at any
time. The Members shall not be required to make any additional
contributions to the capital of the Company. Additional capital may
be contributed to the Company, or capital may be withdrawn, but only as
authorized by appropriate action under this Agreement.
Section
6. Member
Meetings.
a. Place of
Holding Meetings. All meetings of the Members shall be held at
the principal business office of the Company in the City of Pineville, State of
Louisiana, except in cases in which the notices thereof designate some other
place, which may be within or without the State of Louisiana.
b. Quorum. The
presence in person, or by proxy as provided in Subsection (h) of this Section,
by the Members having a majority in interest of the Membership Interests shall
constitute quorum at such meeting.
c. Adjournments. If
a quorum shall not be present or represented at any meeting of the Members, such
meeting may, without any notice other than by announcement at such meeting, be
adjourned from time to time by the affirmative vote of a majority in interest of
the Membership Interests by the authorized representatives of the Members
present in person or by proxy, for a period not exceeding one month at any one
time, without notice other than by announcement at the meeting, until a quorum
shall attend; provided, however, that a meeting at which a manager or managers
are to be elected shall be adjourned only from day to day until such manager or
managers have been elected. A meeting at which a quorum is present
may also be adjourned in like manner. At an adjourned meeting at
which a quorum shall attend, any business may be transacted which might have
been transacted if such meeting had been held or originally called.
d. Annual
Meeting. Except as otherwise provided by resolution of the
board of managers, the annual meeting of the Members for the election of
managers shall be held on the third Friday after the first Monday in April of
each year. At each annual meeting of the
2
Members,
the Members shall elect, by an affirmative vote of a majority in interest of the
Membership Interests, managers to succeed those whose terms have expired as of
the date of such annual meeting. Such other matters as may properly
come before a meeting may be acted upon at an annual meeting.
e. Special
Meetings. Special meetings of the Members for any purpose or
purposes may be called by a Member or the chief executive officer, the
president, a majority of the board of managers, or by a majority of the
executive committee, if any, of the board of managers of the
Company.
f. Conduct
of Meetings. Meetings of the Members shall be presided over by
the chief executive officer or president of the Company or, if the chief
executive officer or president is not present at a meeting, by such other person
as the board of managers shall designate or, if no such person is designated by
the board of managers, the most senior officer of the Company present at the
meeting. The secretary of the Company, if present, shall act as
secretary of each meeting of the Members; if he is not present at a meeting,
then such person as may be designated by the presiding officer shall act as
secretary of the meeting. Meetings of the Members shall follow
reasonable and fair procedure. Subject to the foregoing, the conduct
of any meeting of the Members and the determination of procedure and rules shall
be in the absolute discretion of the presiding officer (the “Chairman of the
Meeting”) and there shall be no appeal from any ruling of the Chairman of the
Meeting with respect to procedure or rules. Accordingly, in any
meeting of the Members or part thereof, the Chairman of the Meeting shall have
the sole power to determine appropriate rules or to dispense with theretofore
prevailing rules. Without limiting the foregoing, the following rules
shall apply:
(i) The
Chairman of the Meeting may ask or require that anyone not a bona fide Member or
authorized representative or proxy of a Member leave the meeting.
(ii) A
resolution or motion shall be considered for vote only if proposed by a Member
or duly authorized proxy, subject to compliance with any other requirements
concerning such a proposed resolution or motion contained in this
Agreement. The Chairman of the Meeting may propose any motion for
vote. The order of business at all meetings of the Members shall be
determined by the Chairman of the Meeting.
(iii) The
Chairman of the Meeting may impose any reasonable limits with respect to
participation in the meetings of the Members, including, but not limited to,
limits on the amount of time at the meeting taken up by the remarks or questions
of a Member and limits as to the subject matter and timing of questions and
remarks by a Member.
(iv) Before
any meetings of the Members, the board of managers may appoint any persons other
than nominees for office to act as inspectors of election at the meeting or its
adjournment. If no inspectors of election are so appointed, the
Chairman of the Meeting may, and on request of a Member or a Member’s proxy
shall, appoint inspectors of election at the meeting of the
Members. The number of inspectors shall be three. If any
person appointed as inspector fails to appear or refuses to act, the Chairman of
the Meeting may, and upon the request of a Member or a Member’s proxy shall,
appoint a person to fill such vacancy.
The duties of these inspectors shall be
as follows:
3
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(1)
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Determine
the Membership Interests outstanding and the voting power of each, the
Membership Interests represented at the meeting, the existence of quorum,
and the authenticity, validity and effect of
proxies;
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(2) Receive
votes or ballots;
(3) Hear
and determine all challenges and questions in any way arising in connection with
the right to vote;
(4) Count
and tabulate all votes;
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(5)
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Report
to the board of managers the results based on the information assembled by
the inspectors; and
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(6)
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Do
any other acts that may be proper to conduct the election or vote with
fairness to the Members.
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Notwithstanding the foregoing, the
final certification of the results of any election or other matter acted upon at
a meeting of the Members shall be made by the board of managers.
g. Voting. The
affirmative vote of a majority in interest of the Membership Interests shall be
required to approve any action or matter submitted to the Member for
approval. Except as otherwise provided by law, the Articles, or this
Agreement, all elections shall be had and all questions shall be decided, at a
duly constituted meeting at which a quorum is present, by a majority in interest
of the Membership Interests.
h. Proxies. A
Member may vote either in person or by proxy executed in writing by such
Member. A telegram, telex, cablegram or similar transmission by a
Member, or a photographic, photostatic, facsimile or similar reproduction of a
writing executed by a Member shall be treated as an execution in writing for
purposes of this Subsection. Proxies for use at any meeting of the Members or in
connection with the taking of any action by written consent shall be filed with
the Managers, before or at the time of the meeting or execution of the written
consent, as the case may be. All proxies shall be received and taken
charge of and all ballots shall be received and canvassed by the board of
managers, who shall decide all matters touching upon the qualification of
voters, the validity of proxies, and the acceptance or rejection of votes,
unless an inspector or inspectors of election shall have been appointed by the
Chairman of the Meeting, in which event such inspector or inspectors shall
decide all such questions. No proxy shall be valid after 11 months
after the date of its execution unless otherwise provided in the
proxy. A proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an
interest. Should a proxy designate two or more persons to act as
proxies, unless that instrument shall provide to the contrary, a majority of
such persons present at any meeting at which their powers thereunder are to be
exercised shall have and may exercise all the powers of voting or giving
consents thereby conferred, or if only one be present, then such powers may be
exercised by that one; or if an even number attend and a majority do not agree
on any particular issue, the Company shall not be required to recognize such
proxy with respect to such issue if such proxy does not specify how such vote is
to be cast with respect to such issue.
4
i. Notice.
(i) Unless
otherwise provided by the Articles, written or printed notice, stating the
place, day, and hour of each meeting of the Members, and, in the case of a
special meeting, the business proposed to be transacted thereat, shall be given
in the manner provided in Section 14 of this Agreement to each Member at least
15 days before an annual meeting and at least 5 days before a special
meeting.
(ii) To
be properly brought before any meeting of the Members, business must be either
(x) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the board of managers pursuant to paragraph (i) of this
Subsection, (y) otherwise properly brought before the meeting by or at the
direction of the board of managers, or (z) otherwise properly before the meeting
by a Member.
(iii) The
Chairman of the Meeting shall, if the facts warrant, determine and declare at
any meeting of the Members that business was not properly brought before the
meeting of the Members in accordance with the provisions of this Subsection, and
if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
j. Consents. Any
action of the Members, which may be taken at a meeting thereof, may be taken
without a meeting if authorized by a writing signed by all the
Members.
Section
7. Management
and Control of the Company
a. Management
of the Company by Managers. The powers of the Company shall be
vested in and exercised, and the business and affairs of the Company shall be
managed, by a board of managers which shall consist of ten (10)
managers.
b. Classification. The
board of managers of the Company shall be divided into three classes of as
nearly as possible equal size, with the term of office of managers of one class
expiring each year. At each annual meeting of the Members, the
successors to the class of managers whose term shall have expired at such
meeting shall be elected to hold office for a term expiring at the third annual
meeting of the Members succeeding such meeting.
c. Nominations. Nominations
for election of managers of the board of managers may be made by the board of
managers or by a Member.
d. Qualifications;
Declaration of Vacancy.
(i) No
person shall be eligible for election or reelection as a manager after attaining
the age of 72, and no person who is or shall have been a full-time officer or
employee of the Company or any subsidiary thereof shall be eligible for election
or reelection as a manager after attaining age 65 or (even if under 65) after
such manager’s employment by the Company has terminated.
(ii) Upon
attaining the age of 72 or 65, as specified in paragraph (i) immediately
preceding, a manager may continue to serve as a manager of the Company until no
later than the next succeeding annual meeting of the Members, at which time,
unless he has
5
previously
ceased to be a manager on the board of managers of the Company, his position as
a manager shall cease. Notwithstanding the foregoing, with regard to
a manager of the Company who is also an officer or employee of the Company or
any subsidiary thereof, such manager’s position as a manager shall cease
immediately upon termination of such manager’s employment by the
Company.
(iii) No
person shall be eligible for election or reelection or to continue to serve as a
manager on the board of managers who is an officer, director, agent,
representative, partner, employee, or nominee of, or otherwise acting at the
direction of, or acting in concert with, (y) a "public utility company" (other
than one that is an “affiliate” of the Company) or "holding company" (other than
one that is an “affiliate” of the Company) as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, or "public
utility" (other than one that is an “affiliate” (as defined in 18 C.F.R. §
161.2) of the Company) as such term is defined in Section 201(e) of the Federal
Power Act of 1920, as amended, or (z) an "affiliate" (as defined in 17 C.F.R. §
230.405) under the Securities Act of 1933, as amended) of any of the persons or
entities specified in clause (y) immediately preceding.
(iv) Upon
the occurrence of any of the events described in paragraph (ii) of this
Subsection, the affected manager shall cease to be a manager of the Company at
the time specified in such paragraph. Determination of the eligibility of a
person for election, reelection, or continued service on the board of managers
under other provisions of this Subsection or otherwise as provided by applicable
law shall, subject to the provisions of paragraph (vi) below, be made by vote of
a majority of the managers of the board of managers. If the board of managers,
pursuant to such a determination, determines that a person is ineligible for
election, reelection, or continued service on the board of managers, such
ineligibility shall be effective immediately upon such determination, and, if
the affected person is a manager of the Company at the time of such
determination, his position as a manager shall cease at such time.
(v) If
a manager of the Company ceases to be a manager (x) at the annual meeting of the
Member next succeeding the day upon which he attained the age of 72 or 65, as
specified in paragraphs (i), (ii), and (iv) of this Subsection, and if there is
time remaining in the regularly scheduled term of office of such manager, (y)
because of termination of employment, as provided in paragraphs (i), (ii), and
(iv) of this Subsection, or (z) upon the determination of the board of managers
of the Company pursuant to paragraph (iv) of this Subsection that a manager of
the Company is no longer qualified to continue serving as a manager of the
Company, the board of managers shall declare the office held by such manager
vacant and may fill such vacancy as provided in Subsection (g) of this
Section.
(vi) If
a member of the board of managers has been adjudged by a court of competent
jurisdiction to be guilty of fraud, criminal conduct (other than minor traffic
violations), gross abuse of office amounting to a breach of trust, or similar
misconduct, and no appeal (or further appeal) therefrom is permitted under
applicable law, the other managers then in office, by unanimous vote, may
declare the position occupied by such manager vacant, and such other managers
may fill such vacancy as provided in Subsection (g) of this
Section.
e. Removal.
In this Subsection, the terms "remove" and "removal" and their related
grammatical forms shall refer only to the process of dismissal provided for in
this Subsection, and shall not be deemed to refer to disqualification of a
manager, cessation of a
6
manager
to be such, or declaration of a vacancy in the office of manager as provided for
in Subsection (d) of this Section or otherwise as permitted by law.
A manager on the board of managers may
be removed at any time by the Members by an affirmative vote of a majority in
interest of the Membership Interests.
x. Xxxxxx. Subject
to the provisions of the laws of Louisiana, the Articles, and this Agreement,
the board of managers shall have and exercise all of the powers which may be
exercised by the Company, including, but without thereby limiting the generality
of the above, the power to create and delegate, with the power to subdelegate,
any of its powers to any committee, officer, or agent; provided, however, that
the board of managers shall not have the power to delegate its authority
to:
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(i)
|
declare
an office held by a manager vacant, fill a vacancy on the board of
managers or remove an officer of the
Company;
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(ii)
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submit
a proposal to the Members for action by the
Members;
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(iii)
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appoint
a manager to or remove a manager from a committee of the board of
managers; or
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(iv) declare
a distribution on the Membership Interests of the Company.
g. Filling
of Vacancies. Newly
created directorships resulting from any increase in the authorized number of
managers and any vacancies in the board of managers resulting from the
attainment by a manager of the age of 72 or 65, as specified in paragraphs (i),
(ii), (iv), and (v) of Subsection (d) of this Section, or from death,
resignation, disqualification or removal of a manager, or from failure of the
Members to elect the full number of authorized managers, or from any other cause
shall be filled by the affirmative vote of at least a majority of the remaining
managers (or manager) then in office, even though less than a quorum of the
whole board of managers. Any manager elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the class of
managers in which the new management position was created or the vacancy
occurred. The Members shall have no right to fill any vacancies in
the board of managers, unless there are not any remaining managers to fill such
vacancy.
h. Annual
and Regular Meetings. Within 45 days after each annual meeting
of the Members, and if possible on the date of each annual meeting of the
Members immediately following each such meeting, the board of managers shall
hold an annual meeting for the purpose of electing officers and transacting
other Company business. Such meeting shall be called in the manner
for calling regular or special meetings of the board of managers.
Except as otherwise provided by
resolution of the board of managers, other regular meetings of the board of
managers shall be held on the last Friday in January, July and October at such
places as the chief executive officer or president may direct in the notices of
such meetings. At least five days’ notice by mail or written
telecommunication shall be given to each manager of the time and place of
holding each regular meeting of the board of managers.
7
The
failure to hold a regular meeting shall have no effect on the Company, its
managers or officers.
i. Special
Meetings. A special meeting of the board of managers may be called at any
time by the chief executive officer or the president, to be held at such place
as he may direct in the notice of such meeting, on four days' notice by mail or
three days' notice by written telecommunication, to each manager. A special
meeting shall be called by the chief executive officer or president in like
manner on the written request of at least 50% of the managers of the
board.
j. Place of
Meetings; Telephone Meetings. A meeting of the board of
managers may be held either within or without the State of Louisiana. The time
and place of holding a regular or special meeting of the board of managers may
be changed and another place and time fixed for such regular or special meeting
by a majority of the managers of the board.
The
board of managers, and a committee thereof, may participate in and hold a
meeting of the board or of such committee by means of telephone conference or
similar communications equipment provided that all persons participating in such
meeting can hear and communicate with one another. Participation in a meeting
pursuant to this provision shall constitute presence in person at such meeting,
except where a person participates in such meeting for the express purpose of
objecting to the transaction of any business on the grounds that such meeting
was not properly called or convened in accordance with this
Agreement.
k. Quorum. A
majority of the managers shall constitute a quorum, but a smaller number may
adjourn a meeting from time to time without further notice until a quorum is
secured. If a quorum is present, the managers present can continue to do
business until adjournment notwithstanding the subsequent withdrawal of enough
managers to leave less than a quorum or the refusal of any manager present to
vote.
l. Compensation.
Each manager shall be entitled to receive from the Company reimbursement of his
expenses incurred in attending any regular or special meeting of the board and,
by resolution of the board, such other compensation as it may approve. Such
reimbursement and compensation shall be payable whether or not an adjournment be
had because of the absence of a quorum. Nothing herein contained shall be
construed to preclude any manager from serving the Company in another capacity
and receiving compensation therefor.
m. Committees. From
time to time, the board of managers may appoint, from its own number, in
addition to the committees provided for in this Agreement, such other committee
or committees for such purpose or purposes as it shall determine. Subject to the
limitations imposed by this Agreement, the Articles, and the laws of the State
of Louisiana, each committee of the board of managers shall have such powers as
shall be specified in the resolution of appointment.
n. Consents. Any
action of the board of managers or any committee designated by the managers
which may be taken at a meeting thereof, may be taken without a meeting if
authorized by a writing signed by all of the managers or all of the members of
such committee, as the case may be; provided, however, that the foregoing shall
not be construed to alter or modify any provision of law or the Articles
pursuant to which the written consent of less than all of the managers is
sufficient for action by the managers.
8
Section
8. Officers.
a. Election,
Tenure and Compensation. The officers of the Company shall
consist of a president, one or more vice presidents, a secretary, a treasurer,
and such other officers, including a chairman of the board of managers, as may
from time to time be elected or appointed by the board of
managers. Officers of the Company shall be elected annually by the
board of managers as provided in Subsection (h) of Section 7 of this
Agreement. If such annual election is not held, the officers then in
office shall remain as such until their respective successors shall be
elected. If an office becomes vacant or an officer is removed for any
reason, the board of managers may elect a successor for such office at any
annual, regular or special meeting. No officer, except the chairman
of the board of managers, need be a manager, and any two or more offices, except
for the offices of president and vice president, may be held by one
person. The powers of all officers of the Company shall be subject to
the provisions of the Articles of Organization.
x. Xxxxxx
and Duties of the Chairman of the Board of Managers. The board of
managers may elect a non-employee chairman to give leadership to the board and
to serve as liaison between management and the board of managers. In
collaboration with the chief executive officer, the chairman will establish an
agenda for each board meeting which covers all matters which should come before
the board in the proper exercise of its duties. The chairman will be
accountable and will provide leadership for all issues of corporate governance
which should come to the attention of the board and its committees. The chairman
shall perform such other duties as from time to time may be delegated to him/her by the board of
managers.
x. Xxxxxx
and Duties of President. The president shall be the chief executive
officer and/or the chief operating officer of the Company and, subject to the
direction of the board of managers, shall (a) have general and active management
of the administration and operation of the business of the Company, (b) have the
general supervision and direction of the other officers of the Company and shall
see that their duties are properly performed, (c) see that all orders and
resolutions of the board of managers are carried into effect, (d) have the power
to execute contracts and conveyances on behalf of the Company (including without
limitation conveyances of real and personal property to and by the Company), and
(e) perform such other functions normally performed by a chief executive
officer.
x. Xxxxxx
and Duties of Vice President. The board of managers may appoint one or
more vice presidents. Each vice president shall have the power to execute
contracts and conveyances on behalf of the Company, and shall have such other
powers and shall perform such other duties as may be assigned to him by the
board of managers or by the president.
e. Power and
Duties of Secretary. The secretary shall attend all meetings of the
managers and record all votes and the proceedings of the meetings in a book or
books to be kept at the principal business office of the Company for that
purpose. He shall give, or cause to be given, proper notice of
meetings of the managers and all other notices required by law or by this
Agreement, and in case of his absence or refusal or neglect to do so, any such
notice may be given by the manager or officer upon
whose request a meeting is called as provided in this Agreement. The
secretary shall also perform such other duties as may be assigned to him.
9
Assistant
secretaries shall have such duties as the board of managers may from time to
time prescribe.
x. Xxxxxx
and Duties of Treasurer. The treasurer shall have custody of the funds,
securities, evidences of indebtedness and other valuable documents of the
Company. The treasurer shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company, and shall deposit
or cause to be deposited all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
board of managers. He shall disburse or cause to be disbursed the funds of the
Company as may be ordered by the board of managers, executive committee, chief
executive officer or president, taking proper vouchers for such disbursements,
and shall render to the chief executive officer, the president, and the managers
at the regular meetings of the board of managers, or whenever they require it,
an account of all his transactions as treasurer and of the financial condition
of the Company, and at the annual meeting of the board of managers, a like
report for the preceding fiscal year. He shall give the Company a bond, if
required by the board of managers, in such sum and in form and with security
satisfactory to the board of managers, for the faithful performance of the
duties of his office and the restoration to the Company, in case of his death,
resignation, or removal from office, of all books, papers, vouchers, moneys, and
other property of whatever kind in his possession belonging to the Company. He
shall perform such other duties as the board of managers or executive committee
may from time to time prescribe. Assistant treasurers shall have such duties as
the board of managers may from time to time prescribe.
g. Delegation
of Duties. In case of the absence or disability of any officer
of the Company, or for any other reason deemed sufficient by the board of
managers, the board of managers may delegate such officer's powers or duties for
the time being to any other officer, to any employee with management
responsibility, or to any manager.
h. Removal. Any
officer elected or appointed by the managers may be removed, with or without
cause, at any time by a majority vote of the board of managers.
Section
9. Committees.
a. Executive,
Audit, Compensation and Nominating/Governance
Committees. The board of managers may appoint an
executive committee, an audit committee, a compensation committee and/or a
nominating/governance committee, each consisting of such number of managers as
it may appoint, to serve at the pleasure of the board of managers, but in any
event not beyond the next annual meeting of the board of managers. The
board may at anytime, without notice, remove and replace any member of such
committees.
x. Xxxxxx
and Duties of the Executive Committee. Subject to the
provisions of subsection (f) of Section 7 of this Operating Agreement, the
executive committee shall have a charter that will be approved, and revised as
appropriate, from time to time by the committee and the board. In
general terms, the functions of the committee shall be those as set forth in the
charter.
x. Xxxxxx
and Duties of the Audit Committee. Subject to the provisions
of subsection (f) of Section 7 of this Operating Agreement, the audit committee
shall have a charter that will be approved, and revised as appropriate, from
time to time by the committee and the board. In general terms, the
functions of the committee shall be those as set forth in the
10
charter.
x. Xxxxxx
and Duties of the Compensation Committee. Subject to the
provisions of subsection (f) of Section 7 of this Operating Agreement, the
compensation committee shall have a charter that will be approved, and revised
as appropriate, from time to time by the committee and the board. In
general terms, the functions of the committee shall be those as set forth in the
charter.
d.(1) Powers
and Duties of the Nominating/Governance Committee. Subject to
the provisions of subsection (f) of Section 7 of this Operating Agreement, the
nominating/governance committee shall have a charter that will be approved, and
revised as appropriate, from time to time by the committee and the
board. In general terms, the functions of the committee shall be
those as set forth in the charter.
e. Meetings. Each
committee shall meet at stated times or by notice to all members of such
committee by one of its number, in which notice the time and place of the
meeting shall be set forth. Each committee shall fix its own rules of
procedure, and a majority shall constitute quorum; but the affirmative vote of
the majority of the whole committee shall be necessary in every
case. Each committee shall keep regular minutes of its proceedings
and report the same to the board of managers.
f. Compensation. Members
of each committee, other than officers of the Company, shall receive such
compensation for their services as shall be prescribed by the board of
managers. Each member of a committee shall be entitled to receive
from the Company reimbursement of his expenses incurred in attending a meeting
of the committee.
Section
10. Profits
or Losses. The net profits or net losses (and any separately
stated items, including without limitation, depreciation, amortization and tax
credits) of the Company shall be allocated to the Members in accordance with
their respective Membership Interests.
Section
11. Distributions. From
time to time, the board of managers shall authorize the Company to make
distributions to the Members for the purpose of defraying the annual tax
liability caused by the Company’s profits. The Company may make other
distributions to the Members as and when authorized by the board of
managers.
Section
12. Dissolution.
a. Events
Causing Dissolution. The following events (each a “Dissolution
Event”) shall cause a dissolution of the Company:
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(i)
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The
filing of an affidavit in accordance with Section 1335.1 of the LaLLCL;
or
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(ii)
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The
entry of a judicial decree of dissolution under Section 1335 of the
LaLLCL.
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b. Winding
Up the Company. Upon the occurrence of a Dissolution Event,
the Members shall wind up the Company and liquidate its assets and liabilities
according to Sections 1336 through 1341 of the LaLLCL. After the
Dissolution Event and until completion of
11
the
winding up, the Members may continue to conduct the business of the
Company. The Members shall at all times retain the maximum limitation
of liability with respect to claims against the Company as is allowed by the
LaLLCL. This limitation of liability shall not be diminished by the
fact that the Members have not formally commenced the winding up of the Company
after a Dissolution Event.
c. Gains or
Losses in Winding Up. Any gains or losses on disposition of
Company properties in the process of liquidation will be credited or charged to
the Members. Any property distributed in kind in the winding up must
be valued and treated as though the property were sold and the cash proceeds
were distributed. The difference between the value of the property
distributed in kind and its book value will be treated as a gain or loss on the
sale of the property and credited or charged to the Members.
Section
13. Indemnity.
a. Right to
Indemnification – General. The Company shall indemnify any person who was
or is, or is threatened to be made, a party to or otherwise involved in any
pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or other proceeding, whether
civil, criminal, administrative or investigative (any such threatened, pending
or completed proceeding being hereinafter called a "Proceeding") by reason of
the fact that he is or was a manager, officer, employee or agent of the Company
or is or was serving at the request of the Company as a director, manager,
officer, employee or agent of another business, foreign or nonprofit
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise (whether the basis of his involvement in such Proceeding is alleged
action in an official capacity or in any other capacity while serving as such),
to the fullest extent permitted by applicable law in effect from time to time,
and to such greater extent as applicable law may from time to time permit, from
and against expenses, including attorney's fees, judgments, fines, amounts paid
or to be paid in settlement, liability and loss, ERISA excise taxes, actually
and reasonably incurred by him or on his behalf or suffered in connection with
such Proceeding or any claim, issue or matter therein; provided, however, that,
except as provided in Subsection (e) of this Section, the Company shall
indemnify any such person claiming indemnity in connection with a Proceeding
initiated by such person only if such Proceeding was authorized by the board of
managers.
b. Certain
Provisions Respecting Indemnification for and
Advancement of
Expenses.
(i) To
the extent that a person referred to in Subsection (a) of this Section is
required to serve as a witness in any Proceeding referred to therein, he shall
be indemnified against all Expenses (as hereinafter defined) actually and
reasonably incurred by him or on his behalf in connection with serving as a
witness.
(ii) The
Company shall from time to time pay, in advance of final disposition, all
Expenses incurred by or on behalf of any person referred to in Subsection (a) of
this Section claiming indemnity thereunder in respect of any Proceeding referred
to therein. Each such advance shall be made within ten days after the receipt by
the Company of a statement from the claimant requesting the advance, which
statement shall reasonably evidence the relevant Expenses and be accompanied or
preceded by any such undertaking as may be required by applicable law respecting
the contingent repayment of such Expenses. Whenever and to the
12
extent
applicable law requires the board of managers to act in the specific case with
respect to the payment of Expenses in advance of the final disposition of any
Proceeding, the board of managers shall act with respect thereto within the
period specified in the preceding sentence and shall withhold the payment of
Expenses in advance only if there is a reasonable and prompt determination by
the board of managers by a majority vote of a quorum of Disinterested Managers
(as hereinafter defined), or (if such quorum is not obtainable or, even if
obtainable, a quorum of Disinterested Managers so directs) by Independent
Counsel (as hereinafter defined) in a written opinion, that advancement of
Expenses is inappropriate, even taking into account any undertaking given with
respect to the repayment of such Expenses, because based on the facts then known
there is no reasonable likelihood that the claimant would be able ultimately to
demonstrate that he met the standard of conduct necessary for indemnification
with respect to such Expenses.
c. Procedure
for Determination of Entitlement to Indemnification.
(i) To
obtain indemnification under this Section, a claimant shall submit to the
Company a written application. The secretary of the Company shall, promptly upon
receipt of such an application for indemnification, advise the board of managers
in writing of the application. In connection with any such application, the
claimant shall provide such documentation and information as is reasonably
requested by the Company and reasonably available to him and relevant to a
determination of entitlement to indemnification.
(ii) A
person's entitlement to indemnification under this Section, unless ordered by a
court, shall be determined, as required or permitted by applicable law: (x) by
the board of managers by a majority vote of a quorum consisting of Disinterested
Managers, (y) if a quorum of the board of managers consisting of Disinterested
Managers is not obtainable or, even if obtainable, a quorum of Disinterested
Managers so directs, by Independent Counsel in a written opinion, or (z) by the
Members of the Company by a vote of a majority in interest of the Membership
Interests; provided, however, that if a Change of Control (as hereinafter
defined) shall have occurred, no determination of entitlement to indemnification
adverse to the claimant shall be made other than one made or concurred in by
Independent Counsel, selected as provided in paragraph (iv) of this Subsection,
in a written opinion.
(iii) If
the determination of entitlement to indemnification is to be made by Independent
Counsel in the absence of a Change of Control, the Company shall furnish notice
to the claimant within ten days after receipt of the application for
indemnification specifying the identity and address of Independent Counsel. The
claimant may, within fourteen days after receipt of such written notice of
selection, deliver to the Company a written objection to such selection, subject
to paragraph (v) of this Subsection. If such an objection is made, either the
Company or the claimant may petition any court of competent jurisdiction for a
determination that the objection has no reasonable basis or for the appointment
as Independent Counsel of counsel selected by the court.
(iv) If
there has been a Change of Control, Independent Counsel to act as and to the
extent required by paragraph (ii) of this Subsection or paragraph (ii) of
Subsection (b) shall be selected by the claimant, who shall give the Company
written notice advising of the identity and address of the Independent Counsel
so selected. The Company may, within seven days after receipt of such written
notice of selection, deliver to the claimant a written objection to such
selection, subject to paragraph (v) of this Subsection. The claimant may, within
five days after
13
the
receipt of such objection, select other counsel to act as Independent Counsel,
and the Company may, within seven days after receipt of such written notice of
selection, deliver to the claimant a written objection, as aforesaid, to such
second selection. In the case of any such objection the claimant may petition
any court of competent jurisdiction for a determination that the objection has
no reasonable basis or for the appointment as Independent Counsel of counsel
selected by the court.
(v) Any
objection to the selection of Independent Counsel may be asserted only on the
ground that the counsel so selected does not qualify as Independent Counsel
under the definition contained in Subsection (g) of this Section, and the
objection shall set forth with particularity the basis of such assertion. No
counsel selected by the Company or by the claimant may serve as Independent
Counsel if a timely objection has been made to his selection unless a court has
determined that such objection has no reasonable basis.
(vi) The
Company shall pay any and all reasonable fees and expenses of Independent
Counsel acting pursuant to this Section and in any proceeding in which such
counsel is a party or a witness in respect of its investigation and report. The
Company shall pay all reasonable fees and expenses incident to the procedures of
this Section regardless of the manner in which Independent Counsel is selected
or appointed.
d. Presumptions
and Effect of Certain Proceedings.
(i) A
person referred to in Subsection (a) of this Section claiming a right to
indemnification under this Section shall be presumed (except as may be otherwise
expressly provided in this Section or required by applicable law) to be entitled
to such indemnification upon submission of an application for indemnification in
accordance with Subsection (c), and the Company shall have the burden of proof
to overcome the presumption in any determination contrary to the
presumption.
(ii) Unless
the determination is to be made by Independent Counsel, if the person or persons
empowered under Subsection (c) of this Section to determine entitlement to
indemnification shall not have made and furnished the determination in writing
to the claimant within 60 days after receipt by the Company of the application
for indemnification, the determination of entitlement to indemnification shall
be deemed to have been made in favor of the claimant unless the claimant
knowingly misrepresented a material fact in connection with the application or
such indemnification is prohibited by law. The termination of any Proceeding, or
of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself adversely affect the right of a claimant to indemnification or create a
presumption that a claimant did not act in a manner which would deny him the
right to indemnification.
e. Right
of Claimant to Bring Suit.
(i) If
(w) a determination is made pursuant to the procedures contemplated by
Subsection (c) of this Section that a claimant is not entitled to
indemnification under this Section, (x) advancement of Expenses is not timely
made pursuant to paragraph (ii) of Subsection (b) of this Section, (y)
Independent Counsel has not made and delivered a written opinion as to
entitlement to indemnification within 90 days after the selection or appointment
of counsel has become final by virtue of the lapse of time for objection or the
overruling of objections or
14
appointment
of counsel by a court, or (z) payment of a claim for indemnification is not made
within five days after a favorable determination of entitlement to
indemnification has been made or deemed to have been made pursuant to Subsection
(c) or (d) of this Section, the claimant shall be entitled to bring suit
against the Company to establish his entitlement to such
indemnification or advancement of Expenses and to recover the unpaid amount of
his claim. It shall be a defense to any such action (other than an action
brought to enforce a claim for Expenses incurred in defending any Proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Company) that the claimant did not meet the
applicable standard of conduct which makes it permissible for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be upon the Company. Neither the failure of the Company (including
its board of managers, Independent Counsel or its Members) to have made a
determination before the commencement of such action that indemnification of the
claimant is proper under the circumstances because he has met such applicable
standard of conduct, nor an actual determination by the Company (including its
board of managers, Independent Counsel or its Members) that the claimant has not
met the applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct, and the claimant shall be entitled to a de novo trial on the merits as
to any such matter as to which no determination or an adverse determination has
been made.
(ii) If
a claimant is successful in whole or in part in prosecuting any claim referred
to in paragraph (i) of this Subsection, the claimant shall also be entitled to
recover from the Company, and shall be indemnified by the Company against, any
and all Expenses actually and reasonably incurred by him in prosecuting such
claim.
f. Non-Exclusivity
and Survival of Rights. The rights of indemnification and to receive
advancement of Expenses contemplated by this Section shall not be deemed
exclusive of any other rights to which any person may at any time be entitled
under any agreement, this Agreement, authorization of the Members or managers
(regardless of whether managers authorizing such indemnification are
beneficiaries thereof), or otherwise, both as to action in his official capacity
and as to action in another capacity; provided that no other indemnification
measure shall permit indemnification of any person for the results of such
person's willful or intentional misconduct.
The
Company may procure or maintain insurance or other similar arrangement, at its
expense, to protect itself and any manager, officer, employee or agent of the
Company or other corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss asserted against or incurred
by such person, whether or not the Company would have the power to indemnify
such person against such expense or liability.
In
considering the cost and availability of such insurance, the Company, in the
exercise of its business judgment, may purchase insurance which provides for any
and all of (x) deductibles, (y) limits on payments required to be made by the
insurer, or (z) coverage which may not be as comprehensive as that previously
included in insurance purchased by the Company. The purchase of insurance with
deductibles, limits on payments and coverage exclusions will be deemed to be in
the best interest of the Company but may not be in the best interest of certain
of the persons covered thereby. As to the Company, purchasing insurance with
deductibles, limits on payments, and coverage exclusions is similar to the
Company's practice of self-insurance in other areas. In order to protect the
officers and managers of the Company, the Company shall
15
indemnify
and hold each of them harmless as provided in Subsection (a) of this Section,
without regard to whether the Company would otherwise be entitled to indemnify
such officer or manager under the other provisions of this Section, to the
extent (x) of such deductibles, (y) of amounts exceeding payments required to be
made by an insurer or (z) that prior policies of officer’s and manager’s
liability insurance held by the Company would have provided for payment to such
officer or manager. Notwithstanding the foregoing provisions of this Subsection,
no person shall be entitled to indemnification for the results of such person's
willful or intentional misconduct.
The
right to indemnification conferred in this Section shall be a contract right,
and no amendment, alteration or repeal of this Section or any provision thereof
shall restrict the indemnification rights granted by this Section as to any
person claiming indemnification with respect to acts, events and circumstances
that occurred, in whole or in part, before such amendment, alteration or repeal.
The provisions of this Section shall continue as to a person who has ceased to
be a manager, officer, employee or agent and shall inure to the benefit of his
heirs, executors and legal representatives.
g. Definitions. For
purposes of this Section:
(i) "Change
of Control" means the occurrence of any of the following events or
circumstances: (1) there shall have occurred an event required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any
similar item on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934, as amended (the "Act"), whether or not the Company is then
subject to such reporting requirement; (2) any "person" (as such term is used in
Section 13(d) and 14(d) of the Act) shall have become the “beneficial owner”,
(as defined in Rule 13d-3 under the Act), directly or indirectly, of a
Membership Interest in the Company representing 30% or more of the combined
Member voting power without the prior approval of at least two-thirds of the
members of the board of managers in office immediately before such person's
attaining such percentage interest; (3) the Company is a party to a merger,
consolidation, or sale of assets or other reorganization as a consequence of
which members of the board of managers in office immediately before such
transaction or event constitute less than a majority of the board of managers
thereafter; (4) during any period of two consecutive years, individuals who at
the beginning of such period constituted the board of managers (including for
this purpose any new manager whose election or nomination for election by the
Company's Members was approved by a vote of at least two-thirds of the managers
then still in office who were managers at the beginning of such period) cease
for any reason to constitute at least a majority of the board of
managers.
(ii) "Disinterested
Manager" means a manager of the Company who is not and was not a
party to the Proceeding in respect of which indemnification is sought as
provided in this Section.
(iii) "Expenses"
shall include all reasonable attorneys' fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a
Proceeding.
16
(iv) "Independent
Counsel" means a law firm, or a member of a law firm, with substantial
experience in matters of corporation law that neither presently is, nor in the
five years before his selection or appointment has been, retained to represent:
(i) the Company or person claiming indemnification in any matter material to
either, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder, and is not otherwise precluded under applicable
professional standards from acting in the capacity herein
contemplated.
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Section
14.
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Notices.
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a. Manner of
Giving Notice. Notice required to be given under the
provisions of this Agreement to a manager, officer, or a Member shall not be
construed to mean personal notice, but may be given by depositing written or
printed notice in a post office or letter box a postpaid wrapper addressed to
such manager, officer, or Member at such address as appears on the books of the
Company, such notice to be deemed to have been given at the time when the same
shall have been thus mailed; or, if such person has provided a
telecommunications address to the Company, such notice may be given by prepaid
written telecommunication sent to such address and in such event shall be deemed
to have been given at the time when the same shall have been
transmitted.
b. Waiver of
Notice. Any officer, manager, or Member may waive, in writing
or by written telecommunication, whether before or after the time stated, any
notice required to be given under this Agreement. Attendance at any
meeting by a manager or a Member without first objecting to lack of notice shall
constitute waiver of notice.
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Section
15.
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General
Provisions.
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a. Choice of
Law. The validity of this Agreement is to be determined under,
and the provisions of this Agreement are to be construed in accordance with, the
laws of the State of Louisiana.
b. Binding
Effect. This Agreement is to be binding upon, and inure to the
benefit of the successors and permitted assigns of the Members.
c. Gender
and Plurality. Wherever applicable, the pronouns designating
the masculine or neuter will equally apply to the feminine, neuter or masculine
genders. Furthermore, wherever applicable within this Agreement, the
singular will include the plural and vice versa. The term “person”
when used herein shall include a natural person and all forms of entities,
including, without limitation, a corporation, trust, association, partnership,
limited partnership, partnership in commendam, limited liability company or
limited liability partnership.
d. Captions. Section,
subsection and paragraph captions are for reference purposes only and will not
be considered to affect context.
e. Severability. If
any part of this Agreement is found by a court of competent jurisdiction to be
void, against public policy or otherwise unenforceable, that part shall be
reformed by the court to the extent necessary to make such provision
enforceable. If the entire provision is deemed unenforceable by the
court, the provision shall be deleted. In either
17
event,
this Agreement and each of the remaining provisions of it, as so amended, shall
remain in full force and effect.
f. Integration. This
Agreement and the Articles embody the entire agreement and understanding between
the Members and the Company and supersede all prior agreements and
understandings, if any, between the Members and the Company, relating to the
subject matter hereof.
|
COMPANY:
|
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
|
|
Name: Xxxxxxx
X. Xxxxxxx
|
|
|
Title: Manager
& CEO
|
|
MEMBER:
|
CLECO
CORPORATION
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
|
|
Name: Xxxxxxx
X. Xxxxxxx
|
|
|
Title: Director,
President & CEO
|
18
EXHIBIT
A TO OPERATING AGREEMENT OF
Initial
Membership Interest and Contribution
|
Member
|
Membership
Interest
|
Cash
Contribution
|
|
Cleco
Corporation
|
100%
|
$1,000.00
|
19
